1st Parliament · 2nd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
– I wish to inform theHouse that I have this day received theresignation by the Right Honorable Sir [Edmund Barton of his seat for the Electoral Division of Hunter. I find that (1) If a. writ were issued forthwith and- the shortest- reasonable period allowed between the issue of the writ and the nominations and between the nominations and the polling, it is almost certain that the session would have been concluded and the dissolution have become imminent before the new member could have been elected. (2) The franchise at such election would be quite unlike that under which the election following the dissolution would be held. (3) Considerable expense would be caused to the Commonwealth and trouble to the electors of the division, with no appreciable advantage to either. Therefore, I do not, as at present advised, propose to issue a writ under existing circumstances.
– Can the Prime Minister intimate to the House when Parliament will be prorogued with a view to its dissolution 1
– As soon as it has completed its business.
– I should be very glad if you, Mr. Speaker, would explain how you know that the dissolution of Parliament will take place at an early date. My views on the subject are quite opposed to those of the majority of honorable members, and if an opportunity could be afforded I should like to discuss the question. I know nothing about the probability of an early dissolution, and I do not think any other honorable member does.
– I have adopted the course which I have announced because it is a matter of common understanding that the prorogation and consequent dissolution of Parliament are not far distant, but, should facts turn out to be otherwise, I shall, immediately upon becoming aware of the circumstances, issue a writ for. the election of a new member to serve in the place of the Right Honorable Sir Edmund Barton. I am not precluded from doing that.
– May I ask that an opportunity shall be afforded to discuss the matter ? The members of this House were elected in May, 1901, and therefore the term of three years for which they were elected does not expire until next May.
– I cannot conceive of any opportunity which I could make for such a discussion, and it is difficult to see how a general discussion as to when Parliament will be dissolved could take place.
– Can the Prime Minister give the House further information in respect to the proposed conference with the Pacific Cable Board 1
– I have received another cable message from Great Britain in relation to the proposal, and judge from its contents that it will be necessary to hold a Conference.
– Has the honorable gentleman any objection to laying the cablegram upon the table of the House ?
– I will lay it upon the table of the House with the other papers on the subject, when the correspondence is complete.
– Before the close of the session 1
– Have the Government decided to hold the elections for the new House of Representatives upon the day upon which the Senate elections are held 1
– I am about to communicate with the Governments of the States to ask what date they propose to fix for the Senate elections.
– “Will the honorable gentleman suggest that a common date shall be fixed?
– I may do so, although, as the honorable member is aware, the Governments of the States are, under the Constitution, independent of the Commonwealth Government in respect to the Senate elections.
– Is it the intention of the Government that the elections of the House of Representatives and of the Senate shall be held concurrently ?
– “When I have ascertained from the Governments of the States -what day they propose to fix for the Senate elections, I shall be able to announce to honorable members our intentions in regard to the elections for the House of Representatives.
– I think that the honorable gentleman should make that announcement how, in view of what has been said by Mr. Speaker.
– I wish to ask the Minister for Home Affairs a question upon a subject in regard to which I have already conferred with him. Will he be good enough to say whether the Federal electoral rolls for Victoria have all been printed and distributed for exhibition as prescribed? Have the appointments of Divisional Officers and Registrars been made ? If not, when does the right honorable gentleman expect to make them ? Will he cause a set of rolls to be exhibited at each of the metropolitan railway stations in addition to the places prescribed 1 What will be the cost of a complete set of rolls for each division ?
– All the rolls for the State of Victoria have been printed, and the rolls for sixteen divisions have been exhibited. The rolls for the remaining seven divisions will be exhibited before the end of the week. The appointments about which the honorable member asks have not yet been made, but I hope to make them within a few days. With regard to the honorable member’s suggestion that the rolls should be exhibited at the metropolitan railway stations; I should like to know whether he means the whole of the rolls for the State, or that at each station the roll for the division in which that station is situated shall be exhibited 1
– The whole of the rolls.
– I think it would be rather confusing to the’ public to exhibit the whole of the rolls at each station, but I shall be glad to confer with the honorable member upon the subject. The cost of a complete set of rolls has been fixed at 5s. for each division in the Commonwealth.
– Is the Minister aware that no forms of claim to vote have accompanied the rolls which have been distributed for inspection ? Will he take steps to see that proper forms of claim are issued with the rolls, so that those who find that their names have been omitted will be able to sign and send in these forms to the proper quarters ?
– It was promised some time ago that forms of claim would be sent to every post-office.
– None have been issued in my district, and application has been made to me upon the subject.
– I will look into the matter, and have it attended to.
– Have the Government decided to carry out the promise of the late Prime Minister with respect to the publication of the minutes, evidence, and other information compiled by the Capital Sites Commission 1 If so, when will copies of the document be available for honorable members and the public generally 1
– The information was to have been ready yesterday or the day before. I shall inquire why it has not been circulated.
– I desire to ask the Prime Minister whether the NavigationBill to be introduced next session will provide for the exercise of the Federal power to maintain the navigability of interState rivers ?
– As the honorable and learned member is aware, there are about 600 clauses in the first departmental draft of the Navigation Bill. With the exception of those portions of the Bill which relate to coastal trade, and a few other matters to which my attention has been directed, I have not closely considered the measure, and am not able therefore to say specifically ‘whether the Bill as drawn includes any provision of the character to which the honorable and learned member refers. But certainly the matter referred to is one which will require some consideration when the Bill is being revised.
– Do the Government propose to make provision for dealing with the matter in some Bill 1
– The matter to which the honorable and learned member refers will require consideration when the draft of the Bill is being revised.
” Mr. CROUCH.- I ask the Prime Minister whether his attention has been called to the fact that a large number of the members of the inter-State Bar have expressed a desire to be present at the swearing-in of the Judges of the High Court, and the holding of their first Court, and whether, in the circumstances, he can see his way to make the ceremony a public one, to take place on the Wednesday, instead of the Tuesday, so that a number of honorable members of this House who are interested may have an opportunity to be present 1
– The character of the judicial office is such that public display or ceremonial other than that of a professional character is generally considered foreign. An opportunity will be afforded, I have no doubt, to members of the Bar to exchange the usual courtesies with the Bench when its members first take their seats.
– Will that be on the Wednesday or the Tuesday?
– Probably on either Monday or Tuesday.
– Why not Wednesday ?
– The question is whether any business which may require to be transacted should be delayed for the purpose suggested ; but possibly a day or two would not matter. When the Judges of the High Court take their place upon the Bench, I hope and believe that the usual reciprocal exchange of courtesies will take place. But, beyond that, it seems to me scarcely a fitting thing in connexion with the judicial office to import any feature which might be considered to be in any way of a political, not to say party, character. .
– I wish to ask the Prime Minister whether he thinks there is any chance of resuming the debate on a resolution submitted by me to this House on the 28th June, 1901, in favour of the establishment of a national Department of Agriculture, and, if not, whether the honorable gentleman will consider the advisableness of formulating a scheme of the nature indicated for submission to the electors at the next Federal elections 1
– The proposal of my honorable and learned friend is one which has always had, and still has, my entire sympathy. I believe the subject is one which is bound to engage the attention of the Government and of the whole of the people of the Commonwealth.
– -I direct the attention of the Prime Minister to the amendment of Public Service Regulation No. 149, carried in another place, and involving an increase of ls. per day in the travelling allowance provided for officers in the general division. I wish to ask the honorable and learned gentleman whether it is the intention of the Government to give effect to the amendment ?
– I assume that the amendment referred to has been made because the honorable member says so. He may recollect that I was absent for the last week or two, and therefore did not follow the proceedings in another place as closely as I otherwise should have done. I have not seen the regulation as amended. I shall look at it.
Motion (by Sir George Turner) proposed -
That the Bill be now read a second time.
– I do not know whether I shall be in order in embracing this opportunity to refer to a matter concerning which I lately asked a question. I refer to the question which you, Mr. Speaker, have decided in proposing not to ask the electors of Hunter, who are now without a representative, to elect one until the Federal general elections, as to the date of which, at the present moment, we know nothing. I do not wish to contravene any parliamentary procedure ; but as this is a very important matter I think it should be ventilated to some extent. My difficulty is that you have made a declaration which involves the supposition that apparently you alone know that there is to be a general election for the House of Representatives at an early date. We know nothing of it officially, and I shall be surprised to learn that you know anything officially as to when this House will be dissolved, and. the general elections for the Federal Parliament will take place. It is because the action you propose to take may form a precedent that I direct special attention to the matter. I regret that such a precedent is being formed, no doubt with the very best intentions by yourself, and, if you have consulted others, with their advice. You, sir, are alone responsible, and I hold rightly or wrongly that you are here setting a precedent which may lead to mischief later on. It is for that reason I should like to know upon what ground, other than that of expense, the decision you have announced is based. I should be glad to secure the attention of honorable members in dealing with this matter.
– There are two difficulties in the way of the honorable member proceeding in this matter unless he can avoid them. In the first place, the honorable member will see that on the businesspaper there is notice of an intention to move a certain resolution with reference to the time when the next general election shall take place. That notice being on the businesspaper, and it being impossible to anticipate debate upon- any question so appearing, discussion upon the question the honorable member raises is precluded. On the other question we are now dealing with the second reading of the Appropriation Bill, and at this stage it is proper to discuss only matters which are included in the Bill. If the honorable member can connect his remarks with any vote appearing in the Appropriation Bill he will be in order ; but I must ask him to so connect his remarks if he can, and also to avoid anticipating any debate which may take place later on upon notice of motion No. 12.
– May I suggest that there appears in the Appropriation Bill a very considerable vote for the purpose of the general election.
– The honorable member for Wide Bay may be able to connect his remarks with that vote.
– He may connect them with the cost of the election.
– I desire that honorable members should understand that I have no feeling in this matter. It is a most important point, and you, Mr. Speaker, have taken upon yourself a great power. I am not at all disputing the benefit which may be derived from, or the saving which may occur, as the result of your well-intentioned decision ; but I have the gravest doubts as to the constitutional soundness of that decision. One reason given for it is that of expense, and it is on that ground I raise the question. I believe that holding the high office which you, sir, adorn in this House, no question of expense should stand between you and the representation of- an important district of the Commonwealth. On that account I regret your decision, and whatever trouble and reasonable expense may be involved, it is our duty to see that every constituency in the Commonwealth has a representative in this House without one day’s unnecessary delay. It is upon the grounds that I have stated that I regret the decision at which you have arrived.
– I am obliged to the honorable member for giving me an opportunity of pointing out that the expense was not the chief reason why I have not proceeded to issue a writ. I first pointed out in the statement I have read, that allowing the shortest possible practical interval between the issue of a writ and the nomination, and between the nomination and poll, it would require, I think, four weeks from to-day before any member could be returned to a writ issued to-day. If it were possible that the member so elected four weeks hence could take his seat, even for a day or two, and so represent his constituents, I should judge it unfitting on my part, or on the part of any one holding the office I have the honour to hold, that the consideration of expense should be taken as a sufficient reason for a course which would prevent a district being represented even for that brief period. Seeing that in the general opinion of those who know most of what is probable, four weeks hence will see this session closed, and that a dissolution will follow a few days later, it did appear to me that the expense and trouble to which the electors would be put would be absolutely resultless and unprofitable. Then a further point to which I called attention in the memorandum I read is that in any case an election held now would have to be conducted under the New South Wales electoral law, under which women would not be able to vote, whilst if an election took place after the dissolution double the number of electors would be entitled to vote, as compared with those who could now exercise the franchise. Any election that might take place under a writ issued by me could afford no index of the will of the electors, or as to the probable result of the election which would take place a short time afterwards under the new roll. These were the reasons which influenced me in taking the action I did. I shall, however, hold myself free to issue a writ if, upon a closer view of the probabilities, or in view of the events which may transpire within the next few days, I consider that there would be any reasonable probabilty of the person who might be returned as the representative of the Hunter district being of any service to his constituents, who certainly have a right to be represented here, regardless of any expense that may be involved.
– I think that the honorable member for Wide Bay has taken the proper course concerning this very important matter. It is almost impossible nowadays, when public opinion is so keen concerning electoral matters, for Mr. Speaker to do anything he ought not to do. At the same time I venture to remark that unless you, Mr. Speaker, had some statement from the Government upon the’ subject, it was not open for you to act as you have done in this particular case. Of course I do not expect you to say that anything has taken place between yourself and the Government, or that you have taken steps to ascertain the opinion of Ministers : but I have a shrewd suspicion that you have ascertained from the proper quarter what are the probabilities. If the Government chose they could put an end to the whole question in five minutes by making a statement, with some kind of certitude, as to the date upon which the elections will probably take place. Is there any special reason why this should remain a secret 1 Is anything to be gained by withholding this information from Parliament ? It is usual towards the close of business in all Parliaments of the Empire to give the House some indication as to when it is likely to rise, and as to the business that is to be disposed of before the prorogation takes place. The Government have not so far informed honorable members upon these points, and the least we have a right to expect from the Prime Minister is some indication of the business which is to be proceeded with and completed before our labours are brought to an end. We> should be informed as to the probable time of the prorogation and the date of the elections.
– The question raised is a perfectly legitimate one. One would think that an honorable member of wide experience, such as the honorable member for Parramatta, would know that the day upon which the second reading of the Appropriation Bill is proposed marks the very close approach of the end of the session.
– That should take- place on the last day of the session.
– Yes, except that under our system the Senate is entitled to have the Appropriation Bill presented to it earlier than is usual in the States Parliaments, in order to afford it an opportunity to criticise matters that do not come before it at other times. I might further reply tothe question of the honorable member for Parramatta by stating that, of the business which is still on the paper, all that it is desired to dispose of is the Patents Bill and the determination of the site of the Federal capital. There are twoother small measures of a purely machinery and departmental character, which it will be necessary to consider. Upon the notice-paper of the Senate appears the Defence Bill, upon which the final touches have to be placed. That is practically all that we propose to do this session, and I hope that this may be regarded as a sufficiently clear indication to honorable mem- . bers of the date of the prorogation. Of course, it is unconstitutional to refer here to that which is a subject for the exercise of the prerogative of His Excellency the Governor-General. The honorable member for Wide Bay directed attention to the step which you, Mr. Speaker, have seen fit to take, and he did so in a manner which was well within his rights. I have no doubt that the step which you took, Mr. Speaker, involved much consideration on your part. It is clear, from such indications as I have mentioned, that this session is about to close, and it would surely be the cruellest of kindness to both the candidates and the electors concerned to ask them to take part in an election upon a roll which is about to be superseded, and which could afford but a very poor indication of the feeling of the constituency.
– The people of the Hunter are the persons who should be allowed to determine whether or not they should elect any one.
– But if a representative were returned upon a roll other than that which will be in force within the next two or three weeks, it would be at a time at which he could not take his seat in Parliament. What possible work of a public character could he do for his constituents.
– This is not the point. The electors should have the choice. They need not nominate any candidates even though the writ is issued.
– I should agree with the honorable member if the consent of the constituents were required before a candidature could be entered upon. There is, however, no condition of that kind, and we know that very often persons are ready for the mere purpose of calling attention to themselves to rush in as candidates. Thus the Commonwealth might be put to the expense of a thousand pounds, and the constituents to the expense of conducting a contest which could be effective in no practical way, and would be repeated within two or three weeks. There is nothing to prevent Mr. Speaker from issuing a writ at any moment if he comes to the conclusion that a representative could be here in time to take part in the work of Parliament. No doubt’ he would issue a writ under such circumstances. But unless he is satisfied that the person elected would become a representative in reality, be able to take a seat in this House and speak for the electors, he is’ surely acting in a most considerate manner, and in the public interest in saving the people of the district and the Commonwealth the expense which would be involved. I think that the course Mr. Speaker has taken is in the best interests of the public. Retaining, as he does, the power to change his course of action to-night or to-morrow morning, he can take the steps necessary to secure to the district its proper representation if our sittings should be prolonged sufficiently to enable its representative to take his seat.
– I quite appreciate the stand Mr. Speaker has taken with a view to save expense, but I am afraid that it may involve a slight “difficulty. When a vacancy occurs whilst Parliament is in session the proper person to issue the writ is Mr. Speaker. Suppose, however, that Parliament really lasted until the 9th day of May next, and no writ were now issued by Mr. Speaker, I question very much whether the Governor-General could issue it. Some difficulty may arise from departing from the usual course. As a rule, when Parliament is near its close and is out of session the Ministry delay the issue of writs. But, in that case, there can be no question as to who shall issue the writs. Suppose, however, that the Speaker delayed the issue of the writ until the session closed.
– Mr. Speaker would issue the writ if he were in the Commonwealth, irrespective of whether Parliament was in or out of session.
– That may be the construction which is placed upon the section by the Prime Minister, but what it really contemplates is that the writ should be issued by Mr. Speaker during the session.
– Or when Parliament is out of session. In any case Mr. Speaker issues the writ.
Bill read a second time and reported without amendment ; report adopted.
– Unless there is some objection on the part of honorable members, it would, perhaps, be well to allow the Bill to pass its third reading.
– Unless there is some pressing need for the adoption of that course, I do not think that it should be followed.
– I have no desire to press the matter.
Bill read a second time.
In Committee :
Clause 1 (Short title).
Mr. BATCHELOR (South Australia).I think that the Treasurer should give the Committee some information as to the nature of these new works and buildings.
Clause agreed to.
Clauses 2 and 3 agreed to.
Bill reported without amendment ; report adopted.
Motion (by Sir George Turner) proposed -
That the resolutions relating to the services of the years 1901-2 and 1902-3 be now adopted.
– I should like to know the nature of the machinery which has been purchased for the Commonwealth Printing Office.
– Had the honorable member put that question to me yesterday, when the Supplementary Estimates were under consideration, I could have supplied him with the details. At the present moment, however, I am not in the position to do so. I know that we have purchased a considerable quantity of machinery for printing purposes. When the Commonwealth was using the printing machinery of the Victorian Government, it was found that awkward delays frequently occurred. To obviate these, we secured some fast-running machines and machinery for binding purposes, and also a number of linotypes ; but it is impossible for me to quote the separate items which we purchased twelve months ago. I know, however, that they included some folding machines, and also a number of quick-running machines for other purposes.
Question resolved in the affirmative.
New Standing Orders
In Committee :
Motions (by Sir George Turner) proposed -
That towards making- good the further supply granted to His Majesty for the services of the period ended 30th June, 1901, and the year ended 30th June, 1902, a sum not exceeding six thousand nine hundred and sixty-eight pounds be granted out of the Consolidated Revenue Fund.
That towards making good the further Supply granted to His Majesty for the services of the year ended 30th June, 1903, a sum not exceeding one hundred and seven thousand nine hundred and ninety-seven pounds be granted out of the Consolidated Revenue Fund.
That towards making good the further Supply granted to His Majesty for Additions, New Works, and Buildings, for the year ended 30th June, 1902, a sum not exceeding one thousand and four pounds be granted out of the Consolidated Revenue Fund.
That towards making good the further Supply granted to His Majesty for Additions, New Works, and Buildings, for the year ended 30th June, 1903, a sum not exceeding two thousand six hundred and thirty-five pounds be granted out of the Consolidated Revenue Fund.
– Perhaps this would be a fitting opportunity for me to bring under the notice of the Prime Minister a matter of some importance to the House. I trust that. somn little time will elapse before the prorogation, and I desire the honorable and learned gentleman to consider whether an attempt should not be made, before the session closes, to pass the draft Standing Orders. I put a similar question to his predecessor on two or three occasions, and I hope that this matter will be attended to.
– This is a matter which is entirely in the hands of honorable members themselves.
– We are here.
– Quite so ; but I think we shall be very closely occupied for the next few days in disposing of the Capital site question. If, in order to enable the draft Standing Orders to be considered, honorable members are willing to remain after we have dealt with that question, the Government will be very happy to assist them.
Question resolved in the affirmative.
In Committee (Consideration resumed from 29th September, vide page 5524) :
Clause 35 -
Evety application and specification shall forthwith be referred by the Commissioner to an examiner who shall ascertain and report as to -
Whether the title has been stated as prescribed ;
Whether the invention has been described as prescribed ;
Whether the application and specification are as prescribed ; and
Whether the invention is novel or has been already in possession of the public with the consent or allowance of the inventor.
– Before we proceed to consider the question of novelty, I wish to suggest that the examination provided for in this clause should be confined to the complete specification. I believe that the Victorian State Parliament, last year, passed an Act to adopt the English practice, which is confined to the examination of the complete specification. I understand that the practice of examining . the provisional specification was found rather inconvenient, and that it led to more expense and delay than was really justified by any safeguard which was thus secured. If a provisional specification is not followed by the complete specification nothing occurs in relation to the patent, although, of course, should a patent be ‘ applied for in respect of the same invention it might subsequently affect the question of novelty. If the complete specification in relation to the application is filed, all the examination that is necessary must be made. It must also affect the provisional specification, because in clause 36 it is provided that the examination of a complete specification must be for the purpose of finding out amongst other things whether the invention to which it refers is substantially the same as that described in the provisional specification. Thus the second examination which must take place under the Bill, as drafted, will also include an examination of the earlier specification. We have also to remember that if the earlier one is not in order, although it has not been examined, the patent itself will be liable to be challenged, or opposition may be offered to the granting of the patent on the ground that the provisional specification is not as prescribed by regulation. There is, therefore, no object to be gained by having two examinations. I do not think that even the drawings are filed in England until the complete specification has been lodged. There they regard the complete specification as the only one in relation to which much trouble need be taken. If there were a breach of the rules as regards the form or title in the provisional specification it might involve the patent itself. Several patent agents think that the examination should be confined to the complete specification, and in order to ventilate their views I gave notice of an amendment, which I do not now propose to move in the form circulated by me. I think that it would be well for the Prime Minister to consolidate clauses 35, 36, and 37. If the examination be confined to the complete specification they may well be converted into one clause. Then the various sub-clauses would follow in their order as part of clause 35, and the subsequent clauses could be amended accordingly for the purpose of reference. For example, if this were done the reference in clause 38 to clauses 35 and 36 would apply to the subclauses of clause 35. I trust that the Prime Minister will consider the matter, for I believe that several honorable members are disposed to support the suggestion which I make.
– In the matter of drafting a good deal can be said for the last proposal made by the honorable and learned member. It would have been easy to include the whole of these three clauses in one, but the subdivision has been adopted, notwithstanding that it involves a little extra reference, for the purpose of clearly showing what is intended to be done at the different stages of the investigation. The honorable and learned member is also correct, so far as I follow him, in his references to the English practice ; but he requires to note that we have not adhered closely to the principle upon which’ the English patent law is founded, and upon which the English administration is carried on. The amendment with which we shall deal presently introduces a proposal entirely novel to the British method of dealing with patents, and though I propose to move an amendment of that amendment, we shall still go considerably beyond what the British law contemplates. This appears to me to affect the question of the two specifications. If the honorable and learned member looks at the clause which we are now considering, he will see that the proposal relates to the provisional and complete specification, as the case may be. Any person who chooses to come forward with his complete specification will have to comply with clauses 35, 36, and 37. A provisional specification, on the other hand, will have to comply only with clause 35, and will not be affected by clauses 36 and 37. What are the requirements ? Occasionally even an agent makes a mistake in applying for a patent, although that is very rare ; but it constantly happens that persons who are extremely uninformed in the ordinary processes of patenting attempt to secure the protection of the law without the assistance of an agent, and that their applications are defective in purely formal matters. The proposed examination is intended, not for the advantage of the office, but for the assistance of the would-be patentee.
– But why should the work be done by an “ examiner “ 1
– Because the examiner is the officer who will have to deal with the application under the following clauses. The elementary requirements in respect of a provisional specification will be set out iti the regulations, and under this clause it will be the duty of the examiner to point out to the applicant what those requirements are. It is comparatively common for a would-be patentee to misdescribe his invention, even in the matter of title, and applications are frequently defective in matters of form. The examination provided for is not an examination upon which any application is rejected.
– It is a very important examination, because it covers the question of novelty generally.
– I propose to strike out that provision.
– And insert it later on.
– Tes. It is entirely out of place in this clause.
– Was not paragraph d inserted by the Senate %
– Yes ; it was not in the Bill as originally drafted. Honorable members will see that when that paragraph has been omitted, all that the examiner will have to do is to see that applications for provisional patents are correct in matters of form. The examiner sees that the would-be patentee has complied with the regulations in that regard, and, if he has not, lends assistance to put matters right. No application will be rejected at this stage. The clause has been introduced solely to afford assistance to persons applying for provisional patents.
– “But why should the application be referred specifically to an “examiner”?
– The honorable member probably knows that in a well-equipped patent office there is a machinery expert, a chemical expert, an expert for textile substances, and so on ; and the examiner to whom the application would go would be the expert in the particular trade affected by the invention which it was sought to patent. He thereupon sees that the application is in order in mere matters of form, and then the patent may be regarded as fairly launched. I move -
That paragraph d be omitted.
Mr. THOMSON (North Sydney).Power has been given under a previous clause to appoint examiners, and by an amendment which was agreed to last night, a special meaning has been given to the word “ examiner.”
– But the duties of the examiners are not defined. They will be gathered from the various provisions of the Bill.
– I have received a communication from a gentleman who is connected with the Patent Office of one of the States, in which he says that formal correctness is not generally inquired into by examiners.
– That work is done by examiners in some of the States.
– Yes, but in other States it is done either by the Commissioner or by one of his clerks. I think it would be better to so amend the clause as to leave it open to the Commissioner to refer applications either to the particular officers entitled examiners, or to clerks, or to do it himself. I do not object to the examination of applications, but the clause as it stands, if read in conjunction with other provisions of the Bill, provides that the work of examining shall be done only by certain officers. That, I think, is undesirable.
– It is the practice of the United States, and, I think, also of Great Britain, to leave this work to examiners.
– That may not be an objectionable practice in a large office where there are plenty of examiners available, but it is not desirable that applicants should be kept waiting because a particular examiner is busy, when there are other officers who could run through their applications and see that they were formally correct.
– I do not see what substantial objection there can be to such a matter being referred to an officer called the “examiner.” The Commissioner himself may perform the functions of an examiner, and if he should be too busy there is no reason why he should not refer a matter to one of those officers I think we should be disturbing the structure of the Bill if we omitted provision for the appointment of examiners. I desire to refer to paragraph d.
– I am asking that that should be omitted from this clause.
– I am very glad to hear that it is proposed that that -paragraph should be omitted.
– The honorable and learned member cannot object to an examination as to the question of novelty. ,
– Will the honorable and learned member wait until we come to clause 37 ?
– I think it is not necessary for the purposes of a patent that any preliminary inquiry should be made by a Government officer on the question of novelty.
– It is most essential that there should be such an inquiry.
– I think not, for this reason : The Government, in issuing a patent, do not guarantee its unassailability They grant a patent at the risk of the applicant.
– Why should they grant a patent for something that is not novel ?
– A Government office could not possibly enter upon the vast and tremendous inquiry involved in the question of novelty: The determination of such a question may involve an inquiry extending all over the world, and including all ages of history. Such an inquiry is impossible for a Government office.
– Not at all. Such inquiries are now made in America.
– I am aware of that, and the result is that a large number of applications for patents are delayed for a long time in the Patent Office, and unfortunate inventors are lamenting the consequent obstruction and delay.
– Many express a contrary opinion.
– In an article in the Law Quarterly, the writer contends that this is a good provision, and that it works well in America.
– There are the two objections to an inquiry as to novelty. The Government do not guarantee the unassailability of a patent, and they grant it at the risk of the applicant. He is asked to comply with certain preliminary requirements, a patent is then granted at his risk, and any one may attack it in a Court of law.
– Does the honorable and learned member know that the real objection to the provision is that it is in existence in the Victorian Patents Act at the present time ?
– That is the very reason I am criticising it in this way. Complaints have been made that it has been found unworkable in Victoria.
– Those complaints are not general.
– I have read them time after time in the press. The requirement of an inquiry as to novelty will impose upon the Government a vast and important function, and one which no Government office can fairly perform.
– I trust that the view expressed by the honorable and learned member for Bendigo will not find acceptance in the Committee. There have been two broad methods upon which patents procedure has operated in different parts of the world. Under one method there is something like an inquiry into novelty in connexion with an application, and in the other a patent is granted without any such inquiry. This latter procedure, in my opinion, strikes at the underlying principle upon which patents are granted. Patents were first of all granted in England on the ground that the inventions were 1 novel so far as England was concerned, and a monopoly with respect to a patent was granted in order to insure to the people the benefit of an invention previously unknown in the country. The essence of the whole matter was novelty. Yet the English procedure for some years has departed altogether from that leading principle, and in England at the present time patents are granted which, in a vast number of instances, are not worth the paper upon which they are written, as indicating that the patented article has the essential element of novelty. In the United States of America the procedure is upon exactly opposite lines. While there they make no attempt to guarantee the inviolability of a patent, or to say that it is absolutely novel, they still take all reasonable care to determine that it is novel. The old formula of “ all care taken but no responsibility incurred “ seems to be that upon which they act. They do take every care, and the experience of those associated with patent procedure as patent agents or- direct applicants is that they infinitely prefer a slight delay while inquiry is being made as to novelty, in order that they may be reasonably assured that their patent when granted does not infringe the rights of of any one else, and that it covers something novel in the way of a valuable improvement. The honorable and learned member for Bendigo has said that the experience of the Victorian Act has supplied him with one reason for opposing the provision.
– Was not the similar provision in the Victorian Act repealed 1
– No, an attempt was made to repeal it, but the late Sir Frederick Sargood, who introduced the Bill for the purpose, became convinced before it had proceeded very far that it would be wrong to repeal the provision, and he dropped the measure and allowed the original procedure to stand. I may say that within a few days a petition against the repeal of the Victorian practice in this respect was signed by thousands of business men and inventors. In New South Wales we have adopted the laxer system, and I think it has been found to be a mistake. So far as I can learn, persons having business with the Patent Office, whether as patent agents or inventors, are not at all satisfied with the laxer procedure. I am not at this stage arguing as to the best place in which to insert this provision. The Prime Minister agrees that there does appear to be some reason why the element of novelty should be inquired into by the examiner, and whether the inquiry should take place in the preliminary stages of the application is a matter of detail. I trust that, in any case, the Committee will insist upon an inquiry into the element of novelty.
– I hope this paragraph will be allowed to remain.
– Not in this clause. I propose to have my amendment inserted in clause 37.
– I believe in the principle contained in it. The Prime Minister referred to the “ uninformed inventor,” but I desire to impress upon the Committee that it it is commonly from men who are considered uninformed that we get inventions.
– I meant uninformed as to the proper course of procedure.
– I am speaking with reference to information to be gained in schools and universities. I acquit the Prime Minister of any intention to reflect upon men who are not possessed of that information. There is learning of different kinds. One man may be learned in the law, and another learned in engine-driving. I do not for a moment suppose that the Prime Minister intended to convey any reflection upon such men as George Stephenson, Watt, and others. I have here a book, entitled The Law and Practice of New South W ales upon Letters Patent, by A. G. Taylor. In an introductory note the author quotes Isaac Taylor as follows : -
The great inventor is one who has walked forth upon the industrial world, not from universities, but from hovels ; not as clad in silks and decked with honours, but as clad in fustian and grimed with soot and oil.
These are the men .we have to consider in passing legislation of this kind - men without means, to whom every day’s work is a consideration - and we should place it within their power to patent the results of their inventive thought in the easiest possible manner, not only for their benefit, but for the advantage of the community. I am pleased to hear that the Prime Minister intends to retain the principle to which reference has been made. I should like to quote one short paragraph from a pamphlet published by Mr. Prank Gossler, a patents agent, who demonstrates the benefit of cheapness. He points out that it pays the nation to make its patent fees as low as possible, and to relieve patentees of expense as far as possible by employing officers to look after their interests. In the end, the general community benefits from every invention, and it should be prepared to pay for the advantages so conferred. Mr. Gossler says -
In the United States, in spite- or rather because - of the small fee charged for a patent, the inventors have with their fees full)’ paid the cost of the magnificent patent office building^ in Washington, and maintained the enormous staff of officers employed therein. And yet there is a surplus of over £125,000 in the Treasury to the credit of the patent office. The volume of work done in this office may be guessed when it is stated that 40,000 applications for patents are made yearly. In 1899 no fewer than 25,527 patents were granted. With all this work there is no bustle, no confusion ; everything goes like well regulated clockwork.
If it pays to do that kind of thing in the United States, it will surely be to our advantage to proceed upon similar lines. The result of the American system has been to enormously increase the number of patents. In the United States there are twice as many patents applied for every year as in Great Britain. This has been due largely to the reduction of the fees.
Clause, as amended, agreed to.
Clause 36 agreed to.
Clause 37 -
In the case of all complete specifications the examiner shall also ascertain and report whether to the best of his knowledge -
The invention is already patented- in the Commonwealth or in any State, or is already the subject of any prior application for a patent in the Commonwealth or in any State.
– I move-
That the letter (a) be inserted after the word “also,” line 2; that the letter (a), line 4, be omitted ; that the words “ (6) Report whether to the best of his knowledge the invention is or is not novel” be added.
This provision will bring us abreast of the latest British law upon the subject of patents. It will give us the benefit of the advance which has been made in the British law after the experience which they have gained of the unsatisfactory results of granting patents without previous searching of the records. The examiners will be persons of large experience and special training. It will be their duty to possess such a knowledge of the specifications as will enable them to detect in the records of the offices of the States similar patents already registered. Further, in the course of their inquiries they will become acquainted with unpatented machines which have been introduced into the States, and acquire a very large general knowledge as to inventions patented elsewhere, which, though not patented in Australia, ha.ve been published in Australia. As the fact of the publication or use in Australia of these machines would at any time thereafter be quite sufficient to upset the patent and destroy its value, we hereby provide that the knowledge obtained by the examiners, instead of being locked up in their breasts, should be communicated to the inventor if it is proposed to criticise the patent in that regard. Thus we are placing at the command of the inventor all the information which the examiner has. We do not propose to follow the American system, and erect the examiner into the position of a Judge who can make requisitions as he chooses, or issue or refuse patents.
– That is the best system.
– Experts differ. I presume that the honorable member has read Edmunds on Patents. Dr. Edmunds is certainly one of the highest living authorities on patents. He is a master of the British system, but when he went to America he examined the United States system, which he had always admired and preferred to the British system. On examining it on the spot, he came to the conclusion that although it possessed great advantages it also had many drawbacks, which on the whole rendered it less desirable than the system adopted in Great Britain. We have followed the course adopted by the British Patent Office last year, and we are taking a still further stride in advance. We do not erect the examiner into the position of a Judge, but we propose to communicate to the inventor the knowledge obtained by the examiner.
– What happens when the examiner reports that an invention is not novel ?
– The registration will not be refused on that ground, but the patent is issued at the patentee’s risk.
– The patent is issued at his risk in any event.
– Yes ; and the risk is a very serious one if there should be any opposition to his patent. Then the case has to be decided by the Commissioner. We do not decide the question at this stage, but we simply place the knowledge obtained by the examiner at the command of the inventor.
– I think that the proposal of the Prime Minister constitutes a distinct improvement upon the present form of the clause, and it also removes the grounds of my previous objection to this provision. It does not set up the examiner as the judge of finality in this matter, nor does it obstruct the application for a patent, nor subject the applicant to a large expenditure, as has been the case in connexion with previous applications. It is a compromise which may fairly be accepted, because, as the Prime Minister declares, it give3 the applicant the advantage of the knowledge of the Patent Office by informing him whether there is any suspicion of a want of novelty in regard to his patent. Should such a suspicion be entertained, the Government officer practically says to him - “ If you take out this patent you do so at your own risk, because it is liable to attack and is therefore valueless.” I think that the amendment is the best possible solution of the difficulty.
– Concerning the remarks of the Prime Minister, I would point out that it is well known to patentees all over the world that patents issued by the British Government are absolutely valueless. The same remark applies to those issued by the Victorian Government. A British patent is worthless until it has emerged from the fire of actual litigation. Upon the other hand a patent which is issued by the American Government is so valuable that immediately the patentee gains possession of it he can raise money upon it. The reason for this difference is that the whole trend of the English Act is in favour of patent agents as against inventors. What we wish to do is to protect the inventor, and that should be our main consideration in this Bill. I am very glad that the provision relating to the novelty or otherwise of an invention is to be preserved in the measure.
– It cannot be preserved effectually.
– It ought to be so preserved, because it is the only vital principle in the Bill so far as the inventor is concerned. In England the practice is for the Government to accept money from the applicants for patents, notwithstanding which they have to run the risk of whether their inventions are novel or otherwise. Consequently, the patents issued in that country are absolutely worthless. In America, however, every application foi- a patent is most carefully examined, and such is the wonderful skill of the examiners that a statement appears in the Daily Mail Year Book that there are not two per thousand of the applications for patents which cannot be finally reported upon regarding their novelty or otherwise. Our aim should be to protect the inventor, and we can never accomplish that unless we retain in the Bill a provision for inquiry as to novelty. That is really the vital principle in the measure. I speak from personal experience. I have had a great deal of experience with patents in connexion with inventors themselves. I know that every inventor feels that he is not sufficiently protected anywhere in the world, save America and Germany. The German patent law is very nearly as good as that which is operative in America. I hold patents in both those countries, and I have no hesitation in affirming that the difference between the value of an American or German patent and an English patent is really marvellous. That difference arises from the fact that the patent offices in America are managed by experts. So far from it being a disadvantage that the Commissioner, rather than a Judge of the Court, should pronounce as to the novelty or otherwise of a patent, I think there is no comparison in actual experience between the value of the two judgments. Nine out of ten inventors would infinitely prefer the decision of a patent expert to that’ of a lawyer or J udge.
– I was somewhat doubtful about this provision, but I intend to support its inclusion in the Bill. Sir Edmund Barton mentioned in the course of his remarks that it did not afford very much protection in America, seeing that 72 per cent, of the patents issued there - notwithstanding the elaborate search which is instituted - are open to challenge upon” the ground that they are not novel. Personally, I do not think that his authority is altogether reliable. In the Law Quarterly Review for July last there is a very able article by Mr. White, who specially refers to these examinations for novelty, and would go to the length of the German and American practice by insisting upon a general examination in that respect. He points out that the. practice has been a very great success in America. Consequently I cannot regard the authority quoted by the Attorney-General as reliable. In America not only is there an examination as to whether previous specifications have been lodged in respect of the same invention, but a general search is made through the records and text-books. The digests of other countries are even ransacked with a view to ascertain whether any invention has been patented elsewhere. There, search is comparatively easy, because the index system in America has recently been brought up to date, and, in comparison with that of other countries, is perfection itself. But, according to an article which recently appeared in the Times, the very opposite condition prevails in Australia. Consequently, until we bring our index system up to date there may be a difficulty, at any rate in regard to the economical working of this provision. I notice that in the report of the English Comptroller of Patents for 1902, it is stated that the Board of Trade Committee which inquired into this matter, and the question of compulsory licences under an Act which was passed in 1901, recommended as a compromise an amendment which applies only to an examination for previous specifications, and that a strong opinion was expressed concerning the need for the adoption of a general search, such as is proposed in this paragraph, in regard to the novelty of inventions. It points out what has already been referred to by the honorable member for Capricornia - namely, that the way in which patents are issued in that country constitutes a serious evil. I believe that in England, owing to the absence of an examination as to the novelty or otherwise of inventions, a search . disclosed that from 1870 downwards about 42 per cent, of the patents issued are open to challenge upon the ground of want of novelty. That condition scarcely fits in with the statement of the American authority quoted by the Prime Minister, who declares that 72 per cent, of the patents granted in America are open to attack. If in England, where there has been no examination as to novelty, 42 per cent, of the patents issued are open to challenge, how is it possible that in America, where a most rigorous examination is conducted, 72 per cent, of them can be open to attack 1 The chances are that in America the provision is a complete success. Under the circumstances I shall support the amendment, although I cannot see that it makes the slightest difference to the clause in its original form, save in respect of the preliminary examination.
Amendments agreed to.
Clause, as amended, agreed to.
If the examiner reports adversely to the application . . . the Commissioner may -
– I move-
That paragraph c be omitted.
The Commissioner may require compliance with certain directions. He might direct than an application should date from a certain time, and if that direction were not complied with he would not issue the patent. It is, therefore, unnecessary for him to have power to refuse an application.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 39 (Appeal to Law Officer).
– I understand that provision is to be made for the appeals to which I have already referred. The difference between my suggestion and the amendment to be proposed by the Prime Minister relates to whether the appeals should lie to theLaw Officer or to the Supreme Court. Perhaps on the whole it would be better for the appeal to be allowed to the Supreme Court, and therefore I do not propose to move an amendment.
Mr. L. E. GROOM (Darling Downs).I desire to ask the Prime Minister whether the decision of the Law Officer will be final under this clause?
– It will be final in regard to the question of date.
– And it will be final in relation to any matter arising under clause 38?
– Quite so. It will be final in regard to directions for amendment and as to date.
– Will not this provision go further ? Will it not relate to the question whether the title has been stated as prescribed, and whether the invention fully described in the complete specification is substantially the same as that described in the provisional one?
– This provision relates only to clause 38.
– The intention is that the appeal provided for in this clause shall be final in regard to matters arising under clause 38.
Clause agreed to.
Clause 40 agreed to.
Clause 41 verbally amended and agreed to.
Clause 42 -
If the Commissioner is satisfied that no objection exists to the specification on the ground that the invention is already patented in the Commonwealth or in any State, or is already the subject of any prior application for a patent in the Commonwealth or in any State he shall in the absence of any other lawful ground of objection accept the specification.
– I move -
That, after the word “ state,” line 6, the words ‘ or is not a matter of common knowledge or practice “ be inserted.
It seems to me that if the Commissioner is not to refuse to accept a specification on the ground that it is not novel, a man will be at liberty to patent the most well-known process or article.
– Not if it has already been patented.
– But suppose it has not been patented? A man might apply for a patent in respect of an article which, although not patented in Australia, had been patented elsewhere, and, by means of a patent improperly secured in that way, might endeavour to obtain certain rights as against the public. That is undesirable.
– I think that objection is covered by certain amendments which have been made. There is to be an examination f or novelty, and there might be a requisition on that ground.
– There is to be no objection on the ground of want of novelty.
– There might be a requisition
– How would it be possible to requisition in respect of an article which in itself was patentable, the only objection being that there had been a prior publication or user ?
– A patent could be granted for an article in respect of ‘which there had been prior publication or user.
– As long as it was not already patented.
– That is not desirable. I do not say that the amendment I suggest is the best that could be made, but it is ridiculous that people should be able to patent an article with or without result. It may be said that a patent such as that to which I have referred would have no result. In that event the patent would be worthless, and, therefore, should not be issued. On the other hand, if people were threatened with heavy law costs if they made use of an article or process which had been patented in these circumstances, they would be deterred from using it, and the holder of the patent would secure an advantage to which he had no claim. An injury would thus be done to the public. Some provision such as I have proposed should be inserted. As I read the Bill - and the Prime Minister agrees with my reading - we might have the most ordinary processes, designs, or articles patented. I think that if a process, design, or article is within common knowledge or use, a patent for it should be refused on that ground.
– If an examiner reports that, to the best of his knowledge, an invention for which a patent is asked is not novel, can the Commissioner refuse the application ?
– I think not.
– It seems to me an extraordinary thing to provide for an inquiry, and to obtain the finding that an invention is not novel, and then to grant a patent which virtually declares that the invention is novel. The inquiry is either needless, or practical effect should be given to it.
– If an application for a patent is accepted, it is . published in due course, and any person who feels that his interests are in any respect challenged may enter opposition to the patent upon the ground of want of novelty, which, if proved, will be fatal to it. “When the officers of the Department think that a supposed invention is not novel, they inform the would-be patentee, but that is not fatal to his application. We propose to shut the door in an applicant’s face only when the invention for which he seeks a patent has already been patented either in the State or in the Commonwealth. When it is objected to on the ground of want of novelty, the Department will give the applicant the advantage of its knowledge upon the subject, and leave it to him to say whether he will take the risk of proceeding further ; because the question of novelty touches upon problems of infinitesimal delicacy. In Germany, where there is in existence one of the most elaborate patent laws, the great Bessemer process, which brought an enormous fortune to its discoverer from the revenues obtained in England, could not be patented, on the ground that there was no novelty in any part of the invention, and that all that was new was the linking together of facts which were already known. The German Patent Office did not give the inventor the opportunity to take out a patent at his own risk. The practice adopted under the Bill is to give the applicant all the information in the possession of the office, and to warn him that the patent may be objected to on the ground of want of novelty. If he then chooses to take out a patent, he does so with his eyes open. “Under the English system, he would have his eyes shut.
– Will it be stated in the patent ?
– If it were a matter of public use, it would not appear in the patent ; but the applicant would be warned that objection might be taken on that score. We do not think that we are injuring the public by adopting this method, because the claim for a patent is published everywhere, and any one has a right to challenge it.
– Under what provision of the Bill could a patent be defeated for want of novelty ?
– Under paragraphse and f of clause 52. We have the choice of two disadvantages. We can either erect the examiner or commissioner into the position of a Judge, which is practically what they do in America, where in many cases there is no appeal from a decision, or, having given the applicant the information possessed by the Department, issue a patent to him with the warning that it may be opposed, and let him risk the opposition, and secure what gains he can, should he survive it. It seemsto me that the second alternative is the lesser of the two evils. I have framed my amendment upon learning that, according tothe advice of the experts consulted, it is, with our methods and our system,, safe to go as far as it provides but dangerous to go further. Although the amendment of the honorable member is in very general terms, and would nob impose anything like the obligation which is imposed in America or Germany, it still imposes the obligation to reject an application if it is thought that the invention is a matter of common knowledge or in common use. If we adopted the amendment, we should run the risk of having the examiners declare that because an invention was old in its form, but new in its ‘applica-. tion, it was not sufficiently novel to justify a patent, and thus the hopes of a man’s lifetime might be destroyed. Is not that a greater evil than to run the risk of a patent being upset after warning has been given to the applicant of the possibility of opposition 1
– I feel compelled to support the amendment. It is the practice every day of patent scalpers to steal patents ; to take ideas from the American and English patent offices, and to work up a little syndicate to buy them. The moment the syndicate is established they apply for a patent in Sydney or in Melbourne. A case of the kind came under my observation three or four years ago, when a person to whom a patent had been offered asked me, while in Sydney, to inquire into it. I was a little suspicious of the patentee, but the drawings and the particulars of the patent appeared to be in order. A few days later, however, I found a drawing of the machinery in the Scientific American as an invention which had been patented in America. If “publication” in clause 52 were defined to mean, not the actual printing in the Commonwealth of a book or other document in which an invention has been described, but the selling of such a book or newspaper here, that difficulty would be got over. But I think it is also advisable, in the interests of true inventors, to adopt the amendment of the honorable member for North Sydney.
Mr. THOMSON (North Sydney).- The Bill is throughout framed on lines which I do not consider the best. I am entirely against the system of issuing a document which is supposed to confer a right or a privilege, but is absolutely useless for that purpose. When a decision as to its uselessness or otherwise is sought in a law court, it will very often happen that the party with the longest purse will succeed, because of the costliness of the processes through which he can take his opponent. There are such things as bluff patents, and they are not uncommon. They are patents taken out by wealthy parties with the object of frightening other persons from using an invention. Under the Bill a patent might be granted for an invention of the commonest knowledge, perhaps for an article in use in the Patent Office itself. The Department would say to the applicant - “This invention is not new, therefore you have no right to obtain a patent for it. Nevertheless we give you a patent.” That is an objection able system. I would rather leave it to the Commissioner to decide whether a patent is novel, and give the right to appeal from his decision. When the Commissioner has decided that an invention is not novel, he should refuse to grant a patent for it, and should tell the applicant that if he objects to that decision he can go to court, and have the matter determined there. The applicant would then have to face, not a rich rival syndicate which was trying to crush him, but merely the Commissioner, who would have no private interests to serve. That is the position which I should like to see adopted. I recognise that the Bill has not been framed upon those lines, and that the acceptance of my amendment would necessitate the passing of other amendments which would, to some extent, disturb its framework. For that reason, and because it is difficult to get a sufficient number of honorable members to take enough interest in the question to vote on other than party lines, I shall not push it. But I protest against the system which has been adopted. I think that a better system, and one which would have been less dangerous both for the public and the honest inventor, could have been adopted.
Mr. KINGSTON (South Australia).The Bill is familiar to me, inasmuch as I had the honour of settling it after it had been prepared by the various patent offices. In regard to the conditions upon which patents may be granted, I was deeply impressed with the desirability of making letters patent something more than waste paper liable to be defeated by the showing at a subsequent date of ‘a want of novelty, even though the patent had then passed into the possession of a bond fide purchaser for value. I should have liked to give them a document of the highest authority, such as a certificate of title under the Torrens Act. The ideal is to confer indefeasibility of title, to give by registration a guarantee of validity, backed up by something in the nature of an insurance fund. I thought at one time that perhaps we might proceed generally upon the broad fundamental lines of the Act to which I have referred, but on looking into the matter more closely, and after having the advantage of the advice of the authorities, and reading up what information was to be obtained on the matter, I came to the conclusion that, under the circumstances, we could not do what is most to be desired.
– But there is no need to grant a certificate that is known to be invalid.
– I should infinitely prefer to issue a certificate of the character I have indicated ; but the nature of the inquiries which would have to be made, and the vastness of the investigation involved, would make the operation so cumbrous and expensive that I am satisfied that we can do nothing at present. At the same time the idea is a very good one, and will require further consideration. I hope that ultimately something will be done in the direction indicated.
– Should we need to make inquiries beyond the Commonwealth ?
– I do not know as to that. We uaight lay it down that unless foreign patents are registered within Australia within a certain time they should be void so far as we are concerned. The question, however, is a very difficult one, and we are scarcely in a position at this late stage to introduce substantial amendments into the measure which has already been passed by another branch of the Legislature. At the same time I sympathize with the suggestion made. No doubt the Prime Minister has noted that, according to the memorandum prepared by the Board of Trade, by Imperial direction, for the use of the Colonial Conference, which sat in 1902, at page 99 it was stated -
In New Zealand and Tasmania the Registrar of Patents may refuse to grant a patent for an allegedinvention which he knows is not new, after giving the applicant an opportunity of being heard personally or by his agent.
Then followed certain information regarding examinations as to novelty and other matters.
– That makes the Registrar a Judge.
– Yes; and’ far less expense is involved than would attach to an appeal to a J udge.
– Only if the decision of the Registrar is in favour of the litigant, otherwise an appeal would have to be made to a J udge.
– It is a pity that a number of absolutely worthless letters of registration should be granted, but we find ourselves between two difficulties. On the one hand, we could register everything, and that would involve the issue ‘of a number of worthless certificates. On the other hand, there is the almost superhuman difficulty attaching to the investigation necessary before we should be justified in declaring the title of the patentee to be indefeasible. The officials of the Department gave a great deal of time to the consideration of this question, and I was very pleased with their work. I hope that the exception which has been taken to the measure will not prevent the Prime Minister from persevering withit, because I believe that there is a general desire on the part of honorable members to place a comprehensive Act upon the statutebook, and that it is generally recognised that the Bill now before us is an honest attempt to improve our legislation.
Mr. THOMSON (North Sydney).- With the consent of the Committee I shall withdraw my amendment. I have no desire that the Patent Office should guarantee the validity of a patent. But I wish it to abstain from issuing certificates which are known to be absolutely invalid and useless. If the authorities have reason to believe that a patent is absolutely worthless they should decline to register it, except, of course, under the direction of a Judge. I recognise the force of the statement of the right honorable and learned member for South Australia that it would be impossible to attempt to reframe this measure at this late period of the session. I desire, therefore, to withdraw my amendment.
Amendment, by leave, withdrawn.
– I am obliged to the honorable member for having withdrawn his amendment. I am closely in agreement with what he has stated, but looking to the task which will lie before the Patent Office during the next three or four years, in making good the defects in the records of the various States, and in initiating a new system, I am loth to put any fresh burdens on the Commissioner. When we are well established, and have taken the great step in advance for which this legislation provides - a far greater stride than has yet been taken by any large British community except Canada - I hope that we shall be able to march onward in the direction which the honorable member has indicated.
– Why does not the Prime Minister allow the absence of novelty to be notified?
– I have already stated the reason. It seems to me that in this measure we are undertaking as much as we can do for the next three or four years. It will be hard work to bring our patent records up to date, and to comply with all the requirements of the Bill. Once we have reached that stage I shall be strongly in favour of increasing the usefulness of the office, and of introducing the reforms indicated so far as experience warrants that course. I move -
That after the word “ the,” line 8, the words “application or “ be inserted.
Amendment agreed to.
Amendment (by Mr. Deakin) proposed -
That the following words be added : - “ Without any condition, but if he is not so satisfied he (nay either -
accept the application and specification on condition that a reference to such prior specifications as he thinks fit be made thereon by way of notice to the public ; or
refuse to accept the application and specification. “
– I think that the PrimeMinistershouldhave provided for a notification in case of an adverse report on the ground of absence of novelty. The examiner has to report whether an invention is a novelty, and if he reports adversely upon that point, why should it not be indicated that the patent is open to challenge on that ground t Opposition may be raised to a patent on the ground of previous publication.
– In one case the report of the examiner is verifiable and in the other it may not be.
– But the report is not conclusive in either case.
– In one case it may be a matter of opinion, whereas in the other it is a matter of fact.
– It is the same in effect in each case. I consider that the patent should bear upon its face a notification of the adverse report on the ground of the absence of novelty. Such a report might very seriously affect the sale value of the patent rights.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 43 -
If the Commissioner is not so satisfied he shall unless the objection be removed by amending the specification to his satisfaction -
determine whether a reference to an’, and, if so, what prior specifications ought to be made in the specification by way of notice to the public, and any reference so determined upon shall be made accordingly ;
except from the patent any State to which the objection applies ;
refuse the application.
– We have by the previous amendment attached to clause 42 the substance of this clause, and when the time comes I shall move for the adoption of a new clause, 42a, which will provide for an appeal to the Commissioner. I propose to omit the clause.
Mr. KINGSTON (South Australia).I observe that we have introduced a special provision excepting from the patent any State for which it cannot be properly granted. In other words, we have to pay regard to the existence of local patents. I do not notice that in the amended clause.
– I have omitted that in its entirety.
– Does not the Prime Minister think that it is necessary ?
– I think that it is of doubtful constitutionality.
– I was inclined to believe at the time I had the Bill under consideration that a provision of this sort was necessary. I should be glad of an assurance from the Prime Minister that he has given the matter adequate consideration.
– What the right honorable member suggests would be a most convenient and advantageous provision if we could insert it in the Bill. The Crown Law officers, however, called my attention to the means of giving effect to it, and upon consideration I came to the conclusion that, prima Jacie, the only power which the Commonwealth possesses, is the power to issue Commonwealth patents - that is patents running throughout Australia. Having regard to the Constitution I do not see how it would be possible to issue a Commonwealth patent which did not run throughout the Commonwealth.
– Will a Commonwealth patent override patent rights which have been granted by a State t
– We take the patents which have been granted by the States exactly as we find them. We do not extend them by one iota, nor diminish them in any respect.
– Suppose that a man took out a patent in Queensland and also a Commonwealth patent. Would the Commonwealth patent override the State patent?
– When a Commonwealth patent has been issued it will not be possible for any individual to take out a State patent in respect of the same invention, so that the emergency which the honorable member contemplates cannot arise.
– What effect will a Commonwealth patent have upon a State patent ?
– The State patents will retain all their legal force. W e do not interfere with any patents which have been granted prior to this measure coming into operation.
– Is there any power to make a State patent a Commonwealth patent?
– No. Every application “for a patent will come before the Common”wealth as a fresh proposal.
Mr. L. E. GROOM (Darling Downs).I presume that under this Bill existing applications for patent rights in the different States will be preserved ? Under it no patent will be granted to the detriment of any previous patent ?
– If a patentee has secured patent rights in one State only, will it not be possible under this Bill for some person to secure a patent for the Commonwealth which will impinge upon his State rights ? I desire to know how the patentee who has obtained patent rights in one State only can be protected against the individual who can at a later stage secure rights for the Commonwealth.
– We cannot issue patent rights for less than the Commonwealth in my opinion.
Mr. KINGSTON (South Australia).Of course clauses 42 and 43 are intended to be read together. It seems to me that, upon inquiry we may find that some person is entitled under a State Act to obtain a patent for a particular State, and that some one else may claim, as regards the rest of the Commonwealth, the issue of a patent under the Commonwealth law. Surely such a case may conceivably occur. I take it that what we wish to do is to continue existing conditions. We do not desire to interfere with the rights enjoyed by a man under a State patent either by diminishing or extending them. It seems to me, however, that if an individual has secured patent rights in regard to certain States it will be possible for another party to obtain a Commonwealth patent as regards the rest of. the Commonwealth.
– There is no “ rest of the Commonwealth.” A Commonwealth patent will cover all the States or none.
– As to a State patent, does the honorable gentleman propose to enlarge that?
– Then who can obtain patent rights as regards the remainder of the Commonwealth ?
– No one can secure Commonwealth rights for a patent which has been issued by a State.
– Surely some person will be in a pesition to. claim them. Let us suppose that one man has patent rights in South Australia, and that another claims those rights for the rest of the States in the Commonwealth ?
– That may happen under the existing law if the applicant does not take out rights in six different States, but it cannot occur after this Bill becomes operative.
– If a man is entitled to patent rights for the Commonwealth, does the Prime Minister intend to prevent him from securing those rights ?
– Yes j if he does not take out patent rights for the Commonwealth before the Commonwealth law comes into operation.
– Then a Commonwealth patent cannot be granted to five States in which patents could be granted before ?
– That is so.
– I do not think that that ought to be so. We ought not to limit the rights of patentees. What is provided here is -
If the Commissioner is satisfied that no objection exists to the specification on the grounds that the invention is already patented in the Commonwealth, or in any State, or is already the subject of any prior application for a patent in the Commonwealth, he shall, in the absence of any othei lawful ground of objection, accept the specification.
But if he is not so satisfied - if he finds upon an application being made for patent rights for the Commonwealth that part of the area is already covered by a grant for a particular State - it appears to me he should have a right to issue the patent for the remainder of the Commonwealth. Consequently we made clause 43 read -
If the Commissioner is not so satisfied he shall, unless the objection be removed, by amending the specification to his satisfaction …. except from the patent any State to which the objection applies.
Why should we limit the right of granting patents ? I say that the proper thing is to continue the power which at present exists, only exempting from the operation of the patent that area in respect of which patent rights have been properly issued under the States laws.
– This is not a question of what is desirable. If it were in our power to parcel out the Commonwealth, to deal with those States in which particular patents have been granted, and then to consider whether we should not issue a patent for the balance of the Commonwealth, it would be highly convenient and advantageous for us to adopt that course. But from my reading of the Constitution, I hesitate to believe that we possess any such power. The right honorable member for South Australia, Mr. Kingston, has been arguing the question of advantage, convenience, and propriety, and I agree with his arguments. Where I differ from him is that I doubt very much whether the Commonwealth has any power except to issue a Commonwealth patent. It appears to me that such a patent must be clear of all other patents of the same_ kind throughout the Commonwealth!
– As regards State patents which have already been granted ?
– Yes. The Commonwealth has no power to grant a patent for a part of the Commonwealth.
– Will this provision preclude another State from issuing another patent ?
– The State laws will operate until this measure comes into operation.
– The effect of passing a Commonwealth patent law will be to prevent the possibility of extending an existing patent to any other State t
– Yes, unless the person who desires such an extension applies for it before the whole of this Act is brought into operation by proclamation. Up till that period it is open to any person to apply to any other State for a patent which has not been taken out there. But when by proclamation we extend this Act to the whole of the Commonwealth, we shall issue only one class of patents - namely, those which run throughout the Commonwealth. Clause 42 provides that in issuing a patent for the Commonwealth we shall take into consideration whether an invention is already patented in the Commonwealth or in any State. Where a patent has been granted in any one State the Commonwealth will be powerless to issue any other patent in respect of the same invention ; and it appears to me that in the remaining five States in . which no patent rights have been taken out the general public are open to make use of that invention. In giving the Commonwealth power to grant patents, the Constitution only conferred upon us the power to issue patent rights for the whole, of the Commonwealth, and not for parts of it.
– This provision will make a State patent a Commonwealth patent ?
– No ; it will not extend the operation of a State patent beyond the State in which patent rights have been granted. But it will prevent somebody else from taking out the same patent in another State.
– It will prevent the original patentee from doing so.
– Yes, if he has not thought it worth his while to do so prior to the Act becoming operative.
– Is that seriously intended?
– I doubt if we have the power to do otherwise.
– Let us insert the provision and try it.
– The adoption of that course might involve patentees and others in a large expenditure before the question could be absolutely tested.
– For how long will applicants be permitted to apply for patents in the States?
– Until the Commonwealth is ready to take over the business of the Patents Departments. That period will necessarily depend upon the time occupied in collecting the State records, and in preparing an index to the patents which have been granted. It seems to me that when we take over this Federal power it must be exercised federally.
– What is the position in regard to all pending applications ?
– They are preserved. I have been considering that question since last night, and at a later stage I intend to submit a proposal which will guarantee all pending applications which are recorded before the Commonwealth finally takes over the administration of the Patents Department. The effect of that proposal will be to provisionally protect those who desire protection throughout the Commonwealth.
– Why should a patentee in a single State not be allowed to apply for a patent throughout the Commonwealth ?
– Because, if the individual who has the advantage of a monopoly does not think it is worth his while to extend his rights to the other States, why should we do so 1
– I desire to bring under the notice of the Prime Minister a concrete case having reference to this point which occurred only to-day. This morning the holder of a provisional patent called upon me. He said, “ I know that a Patents Bill is now before the Commonwealth Parliament. I cannot afford to do more than obtain protection for my invention in Victoria, and consequently I am waiting till the Commonwealth Patents Bill becomes law. I shall then apply for patent rights throughout the Commonwealth.” There are several other similar cases of which I have knowledge. Surely the Prime Minister will admit that in the ‘case to which I have referred the man would suffer a very grave injustice.
– He would not suffer any injustice.
– I do not understand the position taken up by the Prime Minister. Does he say that the patent rights obtained by this man would be limited to “Victoria, and that someone else could step in and apply for a patent in Queensland or New South Wales in respect of the same invention?
– No. The holder of the patent can still apply for a patent in any State, or under the proposal to which I shall ask the Committee to consent he will be able to protect it in Australia. That proposal would enable him to at once provisionally register for the whole Commonwealth.
– Would that protect him ?
– It would give him protection over the whole Commonwealth. He could not, by putting in his provisional registration for any State, secure a patent for the whole Commonwealth.
– This man says that he has secured a provisional order in Victoria, and that he is waiting for the passing of this Bill to obtain a patent for the Commonwealth. Would it not be possible for him to give notice to the patent officer in Victoria that immediately this Bill becomes law he intends to claim his prior right in respect of a patent for the whole Commonwealth %
– But he has not had a prior right in respect of the Commonwealth. He has chosen to apply for a patent in only one State.
– I know that the Prime Minister has the constitutional difficulty in his mind.; but I venture to agree with the suggestion made by the honorable and learned member for South Australia, Mr. Glynn, that -we should give a practical turn to this proposal. The whole of this most excellent Bill is designed to assist poor inventors. They have been looking forward to it as «one of the advantages of Federation, believing that it would enable them to take out a patent for the Commonwealth at a very low rate.
– They will be able to do so, but they cannot confuse that right by making States applications now and coming to the Commonwealth hereafter unless they practically seek a patent in each of the States.
– There is no wish to evade the necessary payment to the Commonwealth. The publication of the provisional order in this State might give information to some one else who possessed the means necessary to enable him to apply for a patent elsewhere.
– The provisional specification will not be shown to anyone.
– I have cited a concrete case, and it seems to me to be a very hard one.
– I am particularly anxious that this Bill shall become law at the earliest possible date, and my frequent speeches are due not to any desire to delay its progress, but to my interest in it. There are men who may think it worth while to extend their patent rights beyond any particular State, but who for want of means are unable to do so. They have been able to raise the few pounds necessary to secure a patent in one particular State, but have been unable to bear the heavy cost of taking out a patent throughout Australia. I should like to ask the Prime Minister whether it would not be possible to convert a patent right held in any one State at the time of the passing of the Bill into a Commonwealth patent. Legal intricacies are not ‘ always clear to the lay mind, but it seems to me that a man who has taken out a patent, for example, in Queensland, at a cost of £15 or £18 - half as much again as we propose to charge for the issue of a Commonwealth patent - should be allowed to merge that patent into one extending over the whole Commonwealth on the passing of this Bill into law. The public would not suffer to any extent by the adoption of such a course.
– It appears to me that the position assumed by the Prime Minister is perfectly sound and constitutional. I do not agree with the suggestion that, even if we had power to grant a patent applicable only to a portion of the Commonwealth, a Federal patent should be a kind of fragmentary affair. Our Legislature has power to pass patent laws applicable not to any one section of the Commonwealth, but to the whole of it. The Prime Minister is quite right when he says that a patent granted by us, and made applicable to only a few of the States, would be null and void. At the same time, I agree with the contention that we ought to protect those who at present have, or at the passing of the Bill will have, patent rights in only one or two States, and I believe that provision has been made for such cases. By taking action the holder of a paten right in any of the States will be able to obtain a Commonwealth patent. His rights are protected by this Bill. An old State patent would, in these circumstances, merge into a Commonwealth patent.
– There is no such provision in the Bill.
– In any event, I think that a provision such as that would be the best way out of .the difficulty. We should provide that on application being made by the holder of an existing patent, and certain preliminaries being carried out, the original right should merge into a Federal patent, and that the applicant should not be compelled to go to the whole expense and formality of making a fresh application.
– He would have to show that there was no user throughout Australia.
– The point is whether the honorable and learned member for South Australia, Mr. Glynn, is correct in his contention that we can issue fragmentary patents. I do not think that we can.
– The point raised by the honorable member for Moreton is a very important one. The honorable and learned member for Bendigo objects to a patchwork system of patents ; but, if I read the Bill rightly, it will perpetuate the present patchwork system, inasmuch as it provides that a patent taken out in any State shall be recognised under the Commonwealth law only so far as that State is concerned. There is no provision that a State patent shall, on the passing of this Bill, merge into a Commonwealth patent. There is no provision that would allow the holder of a State patent to at once extend his right over the Commonwealth.
– Why should we have such a provision 1
– Why not ?
– Are not the public to be considered ?
– Since the introduction of the Bill several persons have sought my advice in regard to this question. They were disposed to protect themselves by taking out a State patent, believing that on the passing of the Bill they would be able to convert it into a Commonwealth patent. I have had to tell, them that no such provision is made in the Bill, and that they would not be well advised in taking out a State patent to protect their rights pending the passing of this measure. The Prime Minister apparently considers that persons so situated have no rights - that if they have been unable to incur the very heavy charges involved under the existing law in taking out a patent for all Australia, they have no right now to demand that their State patent shall merge into a Commonwealth one on the passing of this Bill. I am not prepared to enter into a controversy with the honorable gentleman on the constitutional aspect of the question; but I disagree with the principle laid down by him. If the Constitution will permit of it I think that we should insert a provision in the Bill, enabling the holder of a State patent, in the absence of any valid objection, to convert it into a Commonwealth patent.
– Suppose some one had taken out a patent in another State in respect of the same article 1
– That would be a valid objection to the granting of a Commonwealth patent. I should like to see some provision in the Bill to enable these persons to apply for the registration of their patent in respect of the Commonwealth. When the necessity arises the constitutional question can be fought out and settled by the proper tribunal. I hope that the Prime Minister will propose the insertion of a new clause enabling the holder of a patent in any State to obtain a Commonwealth patent, providing that the Commissioner considers that there is no reasonable objection to the granting of such an application.
Mr. L. E. GROOM (Darling Downs).I recognise that the position would be complicated if an amendment were moved in relation to this matter, and that we should perhaps lose the present opportunity to pass the Bill into law. The Prime Minister, however, might give us his assurance that he will look into this question and see whether it is not possible to provide that, if a person has obtained a patent in any one State which is not being used in any of the other States, he ma)’ convert it into a Commonwealth patent on making proper application. I feel that the position taken up by the honorable and learned gentleman is right in this respect : that if a patent has been granted, for example, in New South Wales. some one else should not be allowed to come in under the Commonwealth law and take out a patent in respect of the same article in all the other States of the Union. In that event, we might have two different proprietors of one patent granted in Australia.
– It might be the one proprietor.
– If application were made by the original inventor, who had a patent already in existence it would not be unconstitutional to convert that patent into a Commonwealth one.
– But suppose the application had been refused in another State ?
– Many have been refused.
– In that case the patent should not be converted into a Commonwealth one. Such an objection should be a good reason for the refusal of the application. I recognise that this is a difficult matter, and cannot be settled on mere sentimental grounds. We have to bear in mind the strong constitutional point which has been put by the Prime Minister - that we have power to grant patents only in respect of the whole Commonwealth, and that in any grant of a patent we cannot except from its operation one particular part of the Commonwealth. The position put by the honorable member for Kooyong, however, is different. His supposition is that a patent taken out in any one State by a man who has not had the means to apply for it over all Australia should be converted into a Commonwealth patent.
– I have promised to make provision in that regard.
– Quite so. I think that that is a fair and reasonable request. If the Prime Minister gives the Committee his assurance that he will enable existing State patents, in the absence of any valid objection; to be converted into Commonwealth patents, and will also preserve the rights of present applicants for patents in any of the States, the concession will be a very great one. But there is force in his position that we cannot grant patents of limited application. The Prime Minister has promised what to a certain extent is a compromise upon the only lines which the Constitution will allow. What we all desire is to encourage inventors who have already been able to obtain a patent in one or more States. If their patent rights have not been lost by user, or in any other way, in the other States, let us give them an opportunity to convert their State patents into Commonwealth patents. The Prime Minister has given us a reasonable assurance, and I think it is advisable that we should try to pass the measure as speedily as possible.
Mr. KINGSTON (South Australia). - I regret that I cannot follow the arguments put forward by some of the speakers in this connexion. The scheme of the Bill was that there should not be a duplication of State patents and- Commonwealth patents in the same area, but that at the same time we should recognise existing rights ; that we should recognise the rights of the owner of a State patent to have the continuance of that patent within the State. But it was not intended that a man who had chosen to patent an invention in one State, reserving ‘the right to patent it in the rest of the Commonwealth when facilities for doing so were provided by a Commonwealth Act, should be in any way harassed or embarrassed. What is now proposed is that if an invention is patented in one State, there shall be no possibility of obtaining a patent for the remaining States. That was not intended, and it will cause great disappointment to many investors if the provision is carried into effect. The case to which the honorable member for Kooyong referred is but one of many. Inventors have, in many cases, been content to protect themselves in the State in which they are manufacturing, intending at some future time to take out a patent for the rest of the Commonwealth. Why should they not be allowed to do so 1 Why should men who have taken out patents in one State be in a worse position than men who have taken out no patents at all ? Or why should we deprive them of the existing right to take out patents in other States? The Prime Minister says that to give them that right will be unconstitutional. It has become the custom to say, when there is no other reason for objecting to a proposal, that it is unconstitutional, the word being used as a substitute for “ that blessed word Mesopotamia.” We have had too much of the cry. In my opinion what I suggest is not unconstitutional. We have the fullest power in this connexion. Under paragraph xviii. of section 51 of the Constitution power is given to legislate with reference to patents and designs, the provision not being accompanied by any restrictive words as to discrimination between the States. On what ground is it unconstitutional to provide what I wish to see provided ?
– A Commonwealth patent must be issued for the whole Commonwealth.
– The Constitution does not say so.
– It is not discrimination to do what we propose.
– I think that it is.
– We have a right to legislate as we like on the subject of patents, so long as we do not do something utterly unreasonable. What is unreasonable in this connexion 1 This is simply a mode of saying that existing rights shall be preserved. I expect that there are more cases of this sort than of any other. Yet we are told that we can issue patents only for the whole Commonwealth. In my opinion we can issue patents for the Commonwealth, subject to any patent that may have been issued in a State or States. I ask the Attorney-General to look further into this matter. Clause 37 provides that -
In the case of all complete specifications the examiner shall also ascertain and report whether to the hsst of his knowledge -
The invention is already patented in the Commonwealth or in any State, or is already the subject of any prior application for a patent in the Commonwealth or in any State.
If an invention is already patented in the Commonwealth, no new patent should be issued except under the conditions which have been suggested ; and if it has been patented in any State, no new patent should be issued for that State, but a patent might be issued for the whole Commonwealth with the exception of that State. It seems to me that that is a reasonable provision to make. Let us make such provision, and allow the High Court afterwards to determine whether it is constitutional. Why should we prevent the holders of State patents from enlarging their rights ?
– What the Prime Minister proposes is really discrimination against existing patentees.
-Yes. If the Prime Minister has his way, the possession of a State patent will be a disqualification for the granting of a Commonwealth patent. Under existing conditions, the holder of a State patent has the right to take out patents in other States where the invention is not in use, and we should not take away that right. If we do so, this’ will be a disqualifying instead of an enabling Bill.
Mr. WILKINSON (Moreton).- If the constitutional objection holds good, and it is impossible to grant a Commonwealth patent which will not apply to every State, I should like to know whether it will not be held that the existence of a patent in any State prevents the granting of a Commonwealth patent for the patented invention, on the ground that it is not a novelty within the Commonwealth 1 I think that, inasmuch as those who have taken out patent rights in the States have paid more than we are asking for a Commonwealth patent, their rights should be recognised, and we should not lose very much if we converted their State patents into Commonwealth patents.
Mr. HIGGINS (Northern Melbourne).I understand that the Prime Minister hasno objection to the granting of a qualified Commonwealth patent, if it be constitutional.
– Hear, hear.
– Let me put a definite ! case before the Committee, so that we may j not misunderstand each other. The right honorable member for South Australia is in i favour of allowing a person who has ob- tained a patent in, say, Victoria, but who at the time of the passing of this measure has not applied for a patent in New South ! Wales, to ask for a Commonwealth patent which would apply to New South Wales, providing that there has not been user in that State. It is desirable to give patentees that right, if it is not unconstitutional to do so. The Constitution provides that duties of Customs shall be uniform, and that we shall pass laws of taxation without discriminating between the States or parts of the States ; but where is the provision that the patent laws shall be uniform 1 We might as well say that a post-office could not be built in one State because it was not built all over the Commonwealth.
– The proposal of the Prime Minister is in the direction of uniformity.
– No doubt. The Minister has in view the expediency of as soon as possible issuing patents for the whole of Australia, and we are all in agreement with him upon that point. But if at the time the Act came into operation a patentee had not yet applied for his patent in more than one State there is a general feeling that he ought to be allowed to apply for letters patent in any other State, and that in the absence of a prior user he should be allowed to qualify. It must be shown that at the time the Constitution came into force a patent had been issued in one of the States. Of course, after the Act came into force we could not allow a man to apply for an absolutely new patent for any one State. It is only in cases where a patent has already been issued in one or more States that a patent limited to other States could be applied for. I think that a good deal of the heat of this debate has arisen partly from the character of the right honorable and learned member for South Australia, who is strenuous at all times - in breaking a butterfly on the wheel, as in everything else - and to a misunderstanding. Perhaps it would be better for the Prime Minister to postpone the clause for the present, and to think over it.
– I thoroughly agree with the position put by the right honorable and learned member for
South Australia. Last night I drew attention to the same point when I moved in the direction of conferring power on an applicant for a patent to ask that it shall be limited to a particular State. Several patent agents have drawn attention to this, question. I think we should strike out the clause, on -the understanding that clause 42 will be reconsidered. We ought te add the provision contained in paragraph 6 of the present clause to clause 42 ; otherwise I shall have to move the amendment of which I have given notice. The clause applies only to patents which were granted prior to the establishment of the Commonwealth. It is only where a patent has not been made applicable to the whole of the States prior to the establishment of the Commonwealth that a patent may be granted limited to the part not at present covered.
– I think the course indicated by the honorable and learned member for South Australia is the correct one. The clause is useless for the purposes for which it was originally intended, and the greater part of it has been incorporated in clause 42. I think, therefore, that it must go. If any provision of this kind be included, it should be separate and apart. It will require to be very care; fully drafted, and I shall be glad if the right honorable and learned member for South Australia, who has had so much to do with the drafting of this measure, will give the matter his attention and draft a clause which will embody his view. I think that he will meet with grave difficulties. When the Bill passed into my hands I found myself at an early stage face to face with the question whether it was intended to apply in the manner now desired - in what I call the partial manner. I at once entertained doubt as to our constitutional competency. Consequently, I adopted what I thought to be a safe attitude. A State patent was to remain a State patent, and, unless it were extended before the Commonwealth was established, it was not to be extended to the point of making it a Commonwealth patent. By section 51 of the Constitution this Parliament is entitled to make laws with respect to such matters as weights and measures, bills of exchange, bankruptcy and insolvency, and patents. It cannot be urged that we are entitled to legislate partially in any of those matters.
– Even as to the machinery 1
– This is something more than machinery. My honorable and learned friend was very ingenious in suggesting a way out of the difficulty. He says : Give a Commonwealth certificate in respect of a patent which has already been granted in one or more States. First of all make it a. Commonwealth patent, and then omit from the certificate Victoria, or New South Wales, or Queensland, if in those States patents shall already have been granted, and give to the patentee or his assigns a monopoly in the remainder of the States. That is a possible escape perhaps.
– Why is there an express provision as to uniformity in regard to taxation and not in regard to other laws ?
– Because the same kind of uniformity is not contemplated. This is expressly a matter of territorial legislation. The advantage to be derived from adopting the suggestion of the honorable and learned member is more superficially attractive than real. The cases in which valuable patents have been taken out in one State and not in others, must be very rare indeed.
– I think the Minister is wrong.
– Even within my own limited experience I know of cases in which it would be extremely difficult to carry out the proposal of the honorable and learned member. I admit that a provision such as that suggested might prove very useful, but I deny that it is important. Take the case of the cyanide process, for instance. That has been patented in every State. A patent was granted in New South Wales, which has since been revoked, whilst in Victoria the rights of the patentees have been purchased by the State Government. How could we deal with that patent ? Could we grant a patent for New South Wales, where the patent has already been revoked t Then, again, to whom should the patent be granted - to the Government of Victoria, which have purchased it so far as it applies to that State, or to the original inventor or some of his assigns? Then, again, there would be different assigns for different patents which have been granted subject to special conditions. .This is particularly the case in Queensland. All these would have to be dealt with upon a territorial basis. If a patent had been granted in Victoria, and it were desired to extend it elsewhere, and it had been published and used in Queensland, but not in New South Wales, we should have to retain in a Commonwealth patent the boundary between New South Wales and Queensland, because no certificate could be granted for the latter State. Suppose it had been published in South Australia, and could not be registered there, but that it had not been published in Western Australia, and that a patent could be granted to the latter State, we should have to. grant a patent for odd States. The honorable and learned member for Northern Melbourne has put the case of a patent which has been taken out for one State only. Take the converse case, in which a patent might have been obtained for five States and not for the remaining one. Does my honorable friend contend that we could grant a Commonwealth patent in order to cover only one State. I shall very carefully reconsider the whole question, which is surrounded with difficulty, and invite the able assistance of the right honorable and learned member for South Australia. I shall ask him to state his proposition. We are now dealing with a proposal to give those who have already obtained rights in some of the States an opportunity toobtain similar rights in other States bv means of a Commonwealth patent.
– But the Minister would not refuse a man his rights to a patent in five States because somebody else had obtained a patent in a sixth State 1
– No, not if it be possible to give it. I shall willingly reconsider the whole question, because my desire is to find a way out of the difficulty.
– Does the Minister propose to consider the constitutional aspect of the question ?
– Yes, that is the only one with which I. am concerned. We are all agreed that if we can do what is desired legitimately it would be a good thing.
– It will not deprive any person of his rights.
– We do not do that now.
– This will block a State patentee from proceeding any further.
– It will if he does not take the necessary steps to protect his rights throughout the Commonwealth before the Bill comes into operation. Persons to whom State patents have been issued can at any time within the next two or three months make application on all the States to protect their rights. The right honorable member for South Australia, Mr. Kingston, desires to give State patentees an opportunity to secure a Commonwealth patent. Whether or not that can be done under our Constitution I shall advise the Committee at a later stage. Personally, I hope that it can be done. Consequently, I shall not object to the inclusion of this proposal, especially if it is made severable from the rest of the Bill. Then, if at any time its validity should be challenged, and the Court decides adversely to it, the remainder of the Bill will continue in operation.
Mr. KINGSTON (South Australia). - I think that the remarks of the Prime Minister are fair enough. At the same time, I cannot retire from the position I have taken up regarding the necessity of a provision of the character to which I refer. If the right honorable gentleman had not interfered with clause 42, he would not have experienced the slightest trouble in dealing with this matter. I understand that the policy of the Bill, as regards novelty, is chat if an invention has been previously patented a Commonwealth patent will not be issued. Clause 37 provides for that. An inquiry will be made as to whether it has previously been patented, and upon the report of the Commissioner the granting of the patent will depend. Should the report be favorable the patent will issue as a matter of course. According to clause 42, if the Commissioner is satisfied that no objection exists to the specification, on the ground that the invention is already patented either in the Commonwealth or in any State, he shall accept the specification. Clause 43 merely set out what was the position in case the Commissioner was not so satisfied - in the event of his discovering that a prior patent existed either in regard to the whole of the Commonwealth or to any State. It declares -
If the Commissioner is not so satisfied, he shall,, unless the objection be removed by amending the specification to his satisfaction -
Determine whether a reference to any, and, if so, what prior specifications ought to be made in the specification by way of notice to the public, and any reference so determined upon shall be made accordingly ;
Paragraph a deals with cases in which there is a difference between the patent which is proposed and any patent which is already in existence - cases which the Commissioner may well settle. Paragraph b was intended to apply to cases in which there was no doubt as to the identity of two patents - the State patent which was originally granted, and the Commonwealth patent which was proposed to be granted. In such instances it was intended to give the Commissioner power to except from the patent any State to which the objection applied. Where there was a. doubt as to whether two patents covered exactly the same ground, patent No. 2 was issued subject to patent No. 1. The third alternative is to refuse the application. I do not know how the matter could have been put plainer. What does the Attorney-General propose? Simply to jumble two clauses together, so as to give the power to specify patent No. 1 when there is a difference, also to give the Commissioner power to refuse the application, but to deny him the power to except from patent No. 2 the State to which the objection referred. It is not very much of a difference ; but I think it is infinitely better not to allow the patentee and the public to be worried by a comparison of the two patents. Where the Commissioner is satisfied that they are identical, it is well to permit him to except from patent No. 2 the whole State covered by patent No. 1, so that there may be no doubt in the minds of anyone concerned that the Commonwealth patent does not refer to a thing of that sort. I cannot put the position plainer, and I do not think it requires to be put plainer. It is an additional power which I venture to think will require to be exercised. I can assure the Prime Minister that there are many cases of the character referred to by the honorable member for Kooyong. Numbers of intending patentees are awaiting the facilities which this Bill offers for obtaining Commonwealth patents. I think that where persons have already secured a State patent they should be assisted in every possible way. Although some men’s rights may not extend to the whole of the Commonwealth, but to five-sixths of it, I think they are entitled to equal consideration with those who enjoy the larger privilege. I hold that the adoption of terms such as those which were originally employed will tend towards simplicity, and I hope that further consideration on the part of the Prime Minister may lead to that end
– The right honorable member for South Australia, Mr. Kingston, desires to insert in the Bill a provision by which any person who is not the patentee of an invention in one State may apply for and obtain patent rights in respect of it in any other State or throughout the rest of the Commonwealth. The impression of the Prime Minister is that the Constitution will not permit of that being done. Should further investigation confirm his present impression, would it not be possible to give to the same patentee the right to obtain a patent which will cover the whole of the Commonwealth, including the State in which he has already secured protection? The reason why we cannot interfere with a patent which is already in existence is that by doing so we should be meddling with individual rights. But where the same individual is concerned we are not trenching upon any person’s right. Should he wish to substitute for a State patent a Commonwealth patent which will extend to the State in which he has already obtained protection, it would be extremely hard if he could not do so. A man may recently have patented an invention in one State. It is impossible for him to determine what is the value of that patent until it has been tested. It may prove to be very valuable, and consequently he may desire to secure patent rights in the other States. In such circumstances it would be a great pity if this Bill prevented him from doing so. If we cannot go as far as the right honorable member for South Australia, Mr. Kingston, wishes - a proceeding which is most desirable if the Constitution permits of it - I trust that the Prime Minister will look into the matter with a view to ascertain whether it is not possible to grant Commonwealth patents to State patentees.
Clauses 44 and 45 agreed to.
Clause 46 -
In addition when a complete specification has been accepted, the Commissioner shall advertise the acceptance in the prescribed manner, and thereupon the application and specification shall be open to public inspection.
Mr. HIGGINS (Northern Melbourne). _ I wish to call attention to this clause, which provides for advertising specifications after their acceptance. Of course the term “acceptance” means that any specification upon the face of it is a proper one, but it does not necessarily mean that a patent will be granted. The object of advertising is to enable people - rival inventors or others - to lodge objections, and to show cause why the patent should not be granted. Of course the report of the Examiner upon the novelty or otherwise of any invention will not be available to the public. But the advertisement is inserted with the object of directing attention to the proposed patent. I am assured that a practice is in vogue - much to the injury of honest inventors - under which, as soon as the specification relating to any invention is made public, patent agents send a copy of it to foreign countries, and take out patents there before the inventor here has had an opportunity to get his patent. The result is that the man in Australia whose brains are responsible for the invention loses the result of his work, and the thief abroad gets the benefit of it. It is this fact which induces me to oppose the idea of advertising specifications. The Bill, as introduced, provided for a thorough examination as to novelty.
– That provision still remains.
– It has been to a large extent removed. The honorable member will realize presently that the only provision that now remains relates to the private report of the Commissioner - which is not to be used as a basis for granting or refusing a patent - as to whether the invention is novel.
– That is to be communicated to the applicant.
– Otherwise it will be kept private.
– It will be kept from the public.
– Under the Bill as it stands an application for a patent will not be refused because of want of novelty. I am and always have been in favour of a thorough official examination as to novelty. I do not mean to say that such an examination would provide a guarantee as to the novelty of the article or process sought to be patented. That guarantee could not be given because the examination would take place before the rival inventors and those who desired to use the article had been heard. It would be impossible to say on the ex parte statement of an applicant and a search made by the official examiners that the article in question was novel, but in ninety cases out of one hundred the fact that a thorough examination for novelty has been made by an official examiner gives a practical guarantee of novelty. The result is that the inventor is placed in a better position in dealing with capitalists and the public generally than would otherwise be the case. If a patent is granted only after an examination for novelty has been made, its value is practically ten times greater than is that of a patent which has been granted without any such precaution. It is true that the examination does not assure the novelty of the patent, but there is such a strong probability that an article which has stood that testis novel, that capitalists are willing to help the inventor by taking a share in his invention. I am assuming at present that the Committee will abide by its decision that there shall be no examination for novelty. If no such examination is to take place there will be Still less reason for making a specification public. What is to be gained by adopting such a course ? The fact that a patent has been granted will in no way prove that it relates to an article which is novel, and, therefore, nothing is to be gained by advertising a specification. Rival inventors and the public generally are not bound to read it, and even if an advertisement is published, inviting objections to the application, it does not follow that outsiders will accept the invitation. There is no assurance of novelty in regard to a patent which has been granted after the publication of an advertisement of this kind. I at one time met a patentee in America who felt very aggrieved. He complained bitterly that under the American law a patent is granted to only the actual inventor, and that it is only given to him if the invention was not known at the time of his discovery, as distinguished from the time of its introduction into America. He said that there are English patent agents in Washington who are always on the look out for new patents, and that when they discover anything of the kind they at once send particulars to England and secure the patent rights there. Owing to the English law, which allows a patent to be granted to the man who first imports an invention into the country, and not solely to the actual discoverer, the pilferer is able to obtain a right and to rob the brains of the American inventor. When these facts were placed before me by this gentleman, I began to speak to him about the injustice of the United States copyright law, but he said - “ A patent is far more valuable than anything relating to copyright, and in this regard you Britishers are the biggest robbers in creation.” I feel that if in dealing with this Bill we find a provision which will assist pilfering of that kind, without giving any compensating benefit, we ought to strike it out. Having regard to the fact that there is no provision as to novelty in the Bill, what can be gained by requiring a specification to be advertised? It will be said, of course, that it is an evil to grant patents which are of no use, and which must mislead those who deal with the holders of them. That is quite true, and I admit that there ought to be an examination for novelty, but there is not–
– We shall make another effort in that direction.
– I trust that the honorable member will succeed in his endeavour to provide for such an examination, and I promise to give hiin my support. As the Bill stands, however, nothing is to be gained by advertising specifications as is proposed. It will simply enable strangers to take advantage of an inventor’s genius. It will delay applications, and at the same time it will insure no greater certainty as to the grant of the patent being of service. It is true that the advertising of a specification will enable opposition to be entered ; but even if objection were taken, no guarantee of novelty would be forthcoming. Very few people search for advertisements of this description. A few patent agents certainly do so, for they are always anxious to send details of inventions to other countries, in order to secure the patent rights there. The keenest look-out is invariably kept in America - I do not suppose that it is so strong in Australia - for any new and marketable invention ; and it seems to me that no compensating advantage is to be gained by the publication of advertisements of this kind. The proper course to pursue would be to allow a patent to issue after the applicant had satisfied the examiners and the Commissioner, and to give power to revoke a patent by machinery as simple as could be devised. If, in these circumstances, a man said - “ I do not want to have this patent standing in my way, the patentee has no right to it” ; the answer would be - “ The patent has been granted, but you are at liberty to take advantage of simple machinery for its revocation.’
I do not think the Bill provides a sufficiently simple method to secure the revocation of a patent which ought not to have been granted. The necessity for simplicity will be still greater if no examination as to novelty is to take place. It is provided in clause 46 that -
When a complete specification has been accepted the Commissioner shall advertise the acceptance in the prescribed manner,
That provision will be of very little service, but there is no harm in it - and thereupon the application and specification shall be open to public inspection.
I would say that as soon as the patent has been granted, the specification should be open to the fullest inspection, but that we ought not to allow it to be open to public examination before the grant has been made - before the patentee has obtained a foothold in the country. As soon as a man has obtained a patent in Australia, he. is in a better position to take steps to patent his invention in other parts of the world.
– But what about opposition. Surely the public should have a chance to object ?
– Certainly. But there is no provision in the Bill which will render opposition to an application of any -value. There is no guarantee that such opposition will be of any avail. What is to be gained by advertising for opposition unless, after it has been found that no opponents are forthcoming, the patentee is open to all the risk of action being taken against him in the law courts ? I do not know of any law under which men who work with their brains are more unjustly treated than they are under the patents laws. It is to the interest of patent agents to get their applications granted, in order that they may earn their commission. Having suceeded in doing so, they leave the poor inventors to the mercy of the men who will use their invention and say that it has been used before, with the result that the question of novelty has to be fought out in the law courts. If I had my way, I should provide a much simpler scheme than this. I should say, in the first instance, that we should have a thorough examination by official examiners to determine the question of novelty. Then we ought to give every opportunity to a man who thinks that a patent should not have been granted, to apply far its revocation ; but we should not allow him to see the specification before the grant has been made. In nine cases out of ten the examinees, if competent, may be trusted.
– Of what is the honorable and learned member afraid 1
– I am afraid that if we allow a specification to be made public before the application for the patent to which it relates has been granted, we shall enable men from abroad to send copies of it to other countries, and to obtain patents there before the inventor in Australia has secured a foothold here. I am assured by inventors that this practice is by no means uncommon. I would suggest that the clause be omitted. If this be done, consequential alterations will have to be made in other clauses, but I should not venture to interfere in that direction. I should leave that work to the Prime Minister. There is no harm in advertising the acceptances, though I do not think there is any advantage in doing so, because it is a mere preliminary stage. I hope the Committee will negative the clause.
– If the Committee strike out the clause they practically destroy the Bill. It has been drafted upon the latest English system, developed by an extension in the direction of novelty further than we originally proposed to go, whereas if this clause is negatived it will mean the substitution of the American system which has just been commended by the honorable and learned member for Northern Melbourne. Under the American system the examiners are, not merely experts, but judges. They can require further information, and obtain it. They can insist upon alterations, and there is no appeal from their refusal to grant a patent.
– There is an appeal to the Examiner-in-Chief.
– I regret that the honorable member for Bland was absent when, on an earlier clause, the question of novelty was debated at some length.
– Yet the Prime Minister assured me that the transposition would not alter the effect of the Bill.
– No; very far from it. AVe spent more than an hour discussing an amendment moved by the honorable member for North Sydney, in connexion with which I very elaborately explained the exact point to which we went in regard to novelty, and the point to which he wanted us to go. The suggestion of the honorable and learned member for Northern Melbourne revives the whole issue.
– Did not the Prime Minister tell me that he intended simply to transpose a paragraph from one clause to another ?
– The object of the transposition was to make “ novelty” an element.
– Want of novelty is not- a barrier.
– That is so, but what some honorable members desire is that want of novelty shall be a barrier. The Bill provides that the knowledge of the Patent Office in regard to novelty shall be placed at the disposal of the would-be patentee. He is to be given all the information possible as to the obstacles in his path, and, if he then chooses to accept a patent, he does so at his own risk.
– And is able to swindle the public.
– The public will not be injured because, when the acceptance of an application for a patent is notified, objection can be taken to it. Those who are interested in other inventions which they consider are affected will always be ready to challenge an application for a new patent. The challenge will afford an opportunity for the question of novelty to be settled. According to the original proposal, the question of novelty had to be determined as a condition of obtaining a patent. The Bill now provides that wouldbe patentees shall have the benefit of all the knowledge in the possession of the Department, so that they can re-shape or alter their inventions in order to avoid opposition ; but the Department is not to refuse an application on the ground of want of novelty. If, knowing the risk, an inventor is ready to accept a patent, he is at liberty to do so. Instead of making novelty an essential element in the examination of an application, we make it a possible objection if opposition is raised.
– And thus help the lawyers.
– The Department issues a patent which it knows to be invalid.
– No; but it issues patents for inventions which it suspects to be not novel. The suspicion of the Department may be ill-founded, however, and therefore we allow would-be patentees to take the risk, if .they are willing to do so, of accepting a patent. The novelty question is revived again by the proposal of the honorable and learned member for Northern
I Melbourne. If the clause were negatived, j the whole Bill would have to be recast. I He is prepared to allow the public officer to be both judge and jury, and to refuse to issue a patent until he is satisfied that there is novelty in the invention for which it is asked. The patentee, however, would still be liable to be brought before the Courts to test the alleged novelty. The honorable and learned member has stated that patents are very rarely challenged after there has been such an examination in regard to novelty as he asks for, but I find that during the years 1895, 1S96, and 1S97, the United States Courts declared seventy-six patents to be invalid, while for the last three years of which I have been able to obtain the figures the English Courts declared only twentynine patents to be invalid.
– But many more patents are issued in the United States than in Great Britain.
– An honorable member has stated that twice as many patents are issued in the United States as are issued in the mother country, but if the English figures are doubled they still remain below the American figures. I do not press the argument too far, but the facts go to show that there is not the exemption from legal attacks under the American system which is generally supposed to. exist. It is well known that patent cases in the Courts of America occupy a very large body of legal practitioners, as well as a great many patent agents, and that the fights over patents are as keen, if not keener, in that country than anywhere else in the world. The examination into the element of novelty, exhaustive as it often is, does not prevent law suits, and I do not think any examination would do so.
– It must reduce their number.
– That is probable; but when regard is had to the number of applications with which the examiners have to deal, it seems impossible that they should be able to allot to each application the time necessary to make the finding as sure as it is made after an investigation by a court of law. The question of novelty is always indeterminate, and with the multiplication and intricacy of inventions in all countries, even the most elaborate investigation cannot do more than approach the goal of satisfaction.
– But examination by publie officers is less expensive than examination in the courts.
– As a rule ; but a case has been placed before me in which an Australian patent agent has been endeavouring for seven years to satisfy the American examiners, although he was able to obtain a patent in Australia in a very short space of time.
– An invention may be novel in Australia, and yet not novel in America.
– That is so ; but a number of cases have been brought under my notice in which inventors have vainly endeavoured, year after year, to obtain patents in America for what they allege to be relatively simple inventions.
– Every applicant for a patent thinks his invention a simple one.
– A recent report of the United States Commissioner of Patents shows that upwards of 21,000 cases had been more than two years before the office, 2,000 eases more than five years, 150 cases more than ten years, and twelve more than fifteen years.
– Sometimes a man wants to obtain a patent for a machine to provide perpetual motion.
– These are not cases of that sort.
– I think that in nine out of ten of those cases the American authorities have postponed the application, and said to the applicant - “If you bring us certain evidence we will consider the matter ; but, as things stand, we cannot grant a patent.”
– I have another authority here, which will, I think, carry great weight with ‘ the honorable and learned member. The following excerpt is taken from an article published in Engineering, of 4th March, 189 2- “
As helping to show what small value ought really to be placed upon the preliminary examination system, it maybe interesting to mention that in Germany many patents granted after official examination have been declared void for want of novelty, and that Dr. Edmunds, a barrister, who has devoted much attention to, and has written an exhaustive treatise upon, patent law, in the course of the discussion which followed the reading of Mr. Lloyd Wise’s presidential address at the Chartered Institute of Patent Agents, last November, said that he had recently had an opportune of personally inspecting the working of the examination as to novelty in the United States, and of talking to some of the examiners on the subject. He must confess that he went to the States rather enamoured of the American examination system, but he had returned quite the reverse. It appeared to him that the examination as to novelty was in a large number of cases highly vexatious and troublesome, that it led to an enormous amount of correspondence and worry and expense, and, further, that even when the patent was granted there was very little guarantee as to its validity. He had been told by these who were in a position to know, that something like 70 percent, of the total number of patents granted were, when litigated in the courts, declared void. What could be the value of an examination when that was the case ? Not 70 per cent, of the patents granted in this country, or anything like that number, were declared void.
The Scientific American of 23rd April, 1892, contains a leading article on patents, which, after dealing with the huge monopoly unduly gained in the United States by the American Bell Telephone Company, suggests the amendment of the law, so that the effect would be -
To dispeuse with the present system of official examination into the novelty of the invention, and place that duty where it more properly belongs, viz., upon the applicant or his agent….. This proposed change would relieve the Patent Office from a vast amount of labour, enable it to issue patents promptly to every applicant, prevent the holding back of cases on legal or technical grounds, and prove of the highest advantage to the public and to inventors.
I do not attach great importance to these statements, because they were made ten years ago, but they tend to show that novelty is a relative term. We cannot be entirely satisfied of the novelty of an invention. No man can possibly be aware of all that has transpired in every country, and the question arises as to the measure of the novelty to which we are prepared to certify. When the honorable member for North Sydney put before the Committee the reasonable proposal that where there was obviously no novelty in an invention, a patent should be refused, I asked him not to press it at present, because we have the enormous task before us of putting the whole of the State records in order.
– The proposal would affect only new patents.
– Yes, but in the meantime the new office will have the burden of all the old patents upon it, and some considerable time must elapse before all the old records are adjusted, corrected, and indexed so that the information they contain may be readily available to every one? interested.
– But the Minister proposes I to cast upon the office the extra burden of reporting as to the novelty of inventions.
– Yes, but we do not cast upon the Patent Office the responsibility of defeating the proposal. We propose that the information shall be placed at the disposal of the inventor.
– That would impose a great burden upon the office, without accomplishing any practical end.
– No doubt it will impose a considerable burden upon the office, but it will mark a great step in advance in the practice with regard to patents, because inventors require to be informed of the circumstances which lead to the conclusion that there is an absence of novelty in their inventions. It seems to _rae that that is about as far as we can go in regard to the examination as to novelty at present. When we have established the Patent Office, steps will be taken to extend these examinations as to novelty. If, however, we were to be plunged into the adoption of a system altogether new to Australia, and which, although it has been followed in America, has its defects, we should find great difficulty in taking up the work of administration which has been carried on in the States upon entirely different methods. We are now face to face with difficulties which must be multiplied immensely if we introduce an entirely new system.
– I desire to know whether the Prime Minister proposes to substitute any Other provision for this clause or to modify it ?
– I do not see how we can modify it. The scheme of the Bill contemplates that any dispute with reference to a patent shall take place before it is granted. If there are no objectors, and the burden is to be thrown upon the examiners, and if, after the examiners have finished their work, the question is to be one entirely for the Courts, an entirely different; scheme will have to be adopted. I believe the thefts of patents to which the honorable and learned member has referred as having taken place in America and Great Britain have now practically been done away with, because I understand that, under the Treaty of Paris, a reciprocal arrangement has been entered into by which twelve months’ protection is assured. The Bill has been drafted with the object of enabling the Commonwealth Patent Office to receive similar consideration under that Treaty. The evil referred to was a very grave one while it lasted, but now it seems to have been abolished. The honorable member’s amendment, innocent as it may appear, would have the effect of substituting a system entirely different from that with which we are acquainted in Australia. It is true that under the Victorian and West Australian systems examinations as to novelty are provided for, but in neither case is so much responsibility thrown upon the examiners as is suggested by the honorable member.
– How far does the Treaty of Paris cover section 103 of the English Patents Act which provides for provisional protection? I understand that under the treaty of Paris twelve months’ protection is granted, but not under conditions such as I mentioned. If an application were pending here and the specifications were sent to France there would be nothing to prevent the registration in that country before the patent could be issued here.
– I understood that provision was made against anything of that kind, but I may be in error. The information supplied to me led me to suppose that the protection was good for twelve months. The whole question now before us is whether we should alter the system proposed by the Bill and substitute that adopted in America, because that seems to be the natural corollary of the honorable member’s proposal. If any such vital change were made it might be impossible to pass the Bill this session.
Clause agreed to.
Clause 47 -
Except as provided in section forty-one, reports of examiners shall in no case be published or be open to public inspection, or be liable to be inspected or produced in any legal proceeding unless the Court or person having power to order inspection or production certificates that such inspection or production is desirable in the interests of justice and ought to be allowed.
– I am advised that if this clause is passed in its present form, an applicant for a patent may be subjected to considerable hardship. There is no reason why an applicant should be called upon to fight in the dark, without any knowledge of the objections urged against his application. In the United States and Canada, if any difficulty arises the examiner reports fully to the applicant as to the grounds upon which he takes exception to the application. I am not prepared to propose an amendment, but I mention the matter to the Prime Minister, because I am quite sure that he wishes to protect applicants for patents.
– Practically, the invariable rule has been to treat the reports of the -examiners in the way proposed, and it is very often to the interests of the applicants themselves that this practice should be followed. It is of great advantage to the applicants to be informed of the purport of the reports against them. We have made provision to that effect in clause 41, and consequential amendments are to be made later on. The question as to how far these reports should be made public has been very carefully considered by the officials concerned, who have advised that this provision should be retained. We have made a considerable step in advance by inserting provisions which will place the patentees in possession of the most material part of the information at our disposal.
Mr. HIGGINS (Northern Melbourne).Is not the reference in this clause to clause 41a mistake 1 There is no provision in clause 41 with regard to the publication or inspection of the reports of the examiners. I think that there must have been some change in the numbering of the clauses, and that clause 39 should be referred to.
– I do not think there is any mistake, but I shall look into the matter.
Clause agreed to.
Clauses 48to 50 agreed to.
Clause 51 verbally amended and agreed to.
Clause 52 -
Any person may within two months from the advertisement of the acceptance of a complete specification, or within such further time not exceeding one month as the Commissioner on application made within such two months allows, give notice at the Patent Office of opposition to the grant of the patent on any of the following grounds, but on no other : -
Mr. HIGGINS (Northern Melbourne).Does the Prime M inister think that the provisions contained in this clause have been sufficiently worked out ? For instance, paragraph c declares that any person within two months from the advertising of the acceptance of a complete specification may give notice of opposition to the granting of any patent, on the ground that the invention to which it refers has been prievously patented in the Commonwealth, or in a State. The fact that an invention has been patented in a State is to be regarded as an objection to the issue of a Commonwealth patent. Of course, that provision bears directly upon the question which has already been raised by several honorable members. But I would point out that if any alteration is to be effected in the policy of this measure, a similar alteration must be made here. Paragraph e sets forth as a possible ground for opposition to the issue of any patent, that the invention to which it refers is not novel. Paragraph f covers the same ground. Is that intended 1
– I admitted last nightthat in portions of the Bill - and this is one of them - the drafting was not that which I should have adopted, nor do I think it is that which would have been followed by the right honorable and learned member for South Australia, Mr. Kingston, had it not been pressed upon him by the Patent Officers. They declare that the public have come to place a specific meaning upon these terms, and that therefore they should be adhered to. At the same time I think that they might have been disposed of by a briefer and simpler statement.
– To what Acts do the sidenotes refer?
– To English Acts.
– I should like to ask the Prime Minister if he thinks that two months is a sufficient time within which to allow of objections being taken to the granting of any patent ? Only this afternoon the case of the patenting of the cyanide process was mentioned. In that case the patentees really had no legal standing in Queensland until they secured an amendment of their patent. These matters are usually advertised in the Government Gazette - a publication which the average person does not read. As a result the patentees of the cyanide process were allowed to amend their patent in such a way as to give them power, in the event of any other chemical being discovered for the extraction of gold - no matter how remote it might be from cyanide - to claim that it was covered by their patent rights. Consequently the mining industry in Queensland had to pay a royalty upon a large quantity of gold which was extracted by this process. Indeed the northern portion of that State alone must have contributed £100,000 by way of royalty. I think that the period of two months prescribed in this clause should be extended to at least three months.
– I do not like this provision. More than two months might be occupied in reaching the centres of population, where the Patent Offices will be established, from the remote parts of the different States. The time limit imposed by the clause is altogether too brief. Paragraphf sets forth, as a ground of objection, that the invention has been described in a book or other printed publication issued in the Commonwealth before the date of the application. The provision, it seems to me, will deprive a man, who has obtained a patent in any State, of his right to become a Commonwealth patentee. I wish to preserve to him that right, and I am not at all sure that we have done that, despite the assurances of the Prime Minister to the contrary. Let us suppose for example that a man obtained a patent in New South Wales in 1899, and that another individual, taking advantage of that invention, obtained a patent in respect of it in Victoria the following year, under this Bill who would have the priority of claim ? The original inventor would probably be the man who patented the invention first. But two conflicting claims would arise.
– That is one of the many difficulties which must occur if we attempt to extend State patents to the Commonwealth.
– Is it not possible to surmount those difficulties in a Bill of this kind ?
– I am inclined to think there is a great deal in the remarks of the honorable member for Kennedy. I find that the report which I have in my hand relating to the British patent system throughout the Empire does not refer to this point. Reference to the Victorian Act, however, shows that in connexion with the granting of patents in this State two months are allowed for lodging objections. If that period is not too long in the case of Victoria, it certainly does not err upon the side of liberality in the case of the Commonwealth. Of course it is very undesirable to keep an applicant whose patent has been accepted upon the tenter-hooks for a longer period than is necessary. Every extension of the time within which objections may be lodged constitutes an injury to him. We should, therefore, only allow such a period to elapse as will afford persons throughout the Commonwealth a fair opportunity to to lodge their objections. I feel some hesitancy in suggesting any further term, but I am prepared to extend it to three months.
Amendment (by Mr.McDonald) agreed to-
That the word “ two,” lines 1 and 5, be omitted, with a view to insert in lieu thereof the word “three.”
Clause, as amended, agreed to.
Clause 53 agreed to.
Clause 54 -
Any party aggrieved by the decision of the Commissioner may, in the time and in the manner prescribed, appeal to the Supreme Court.
Mr. L. E. GROOM (Darling Downs).I move -
That after the word “appeal” the words “to. the High Court or “ be inserted.
There is just one other matter upon which I should like the opinion of the Prime Minister. Is it not advisable that we should preserve an appeal in these matters to the Crown Law officer? It has been suggested to me by several patent agents that instead of compelling an appeal to be made t© the Supreme Court, it might be cheaper and more expeditious to permit first an appeal to the Law Officer and afterwards, if necessary, a further appeal from him to the Supreme Court.
– The undoubted difficulty is that the adoption of such a proposal would mean the introduction of still another tribunal. Although I am told that in Victoria comparatively few appeals have been made from the decisions of the Crown Law Officer, there is no doubt that the suggestion of the honorable and learned member, if carried into effect, would interpose another tribunal in cases in which contentious litigants were concerned. S© iar, I am without prejudice against the proposal, but I am assured by patent agents that they much prefer an appeal to the Supreme Court.
Mr. L. E. GROOM (Darling Downs).I presume that the first Commonwealth Patent Office will be at the seat of Government.
– And this amendment will mean that while the seat of Government remains here there will be an alternative appeal to the Supreme Court of Victoria?
– When we go to the Federal territory the sole Court of Appeal will be the High Court. That will be the effect of this amendment ?
Amendment agreed to.
Clause, as amended, agreed to.
Clause 55 consequentially amended and agreed to.
Clauses 56 to 59 agreed to.
Clause 60 -
Thereupon the Commissioner shall . . on receipt of the prescribed fee for enlargement, not exceeding Two pounds, enlarge the time accordingly, subject to the following conditions : -
Mr. GLYNN (South Australia).- I do not know whether the Prime Minister is prepared to accept the amendment which I have circulated, but I have simply put it forward by way of suggestion. I have been consulted with regard to this question by several patent agents, who think that if the enlargement of the time of payment were extended to twelve months, and proportionate charges made for each additional month over the period at, present provided for in the Bili, considerable revenue would be obtained. It is purely a matter of conjecture.
– There is a good deal to be said for the amendment, and I do not object to it.
– I move-
That the words “not exceeding Two pounds,” lines 7 and8, be omitted, with the view to insert in lieu thereof the words “or, for a period not exceeding three months, not more than Two pounds and a proportionate fee for each additional month, not exceeding in all the period of a year and the sum of Eight pounds.’
– It will be necessary to amend paragraph (a) of sub-clause (4).
– Yes. We shaU have to strike out that paragraph.
– It will be sufficient to substitute the words “ one year “ for the words “ three months.”
Amendment agreed to.
Amendment (by Mr. Glynn) agreed to -
That the words “ three months,” line 12, be omitted with the view to insert in lieu thereof the words “ one year.”
Clause, as amended, agreed to.
Clause 61 -
A patent . . . shall be granted for one invention only . . . but it shall not be competent for any person in an action or other proceeding to take any objection to a patent on the ground that it comprises more than one invention.
– I am advised that it is desirable to amend this clause by adding the words - or that the complete specification is not in conformity with the provisional -
This amendment is considered to be of some importance, in view of the provision in clause 36, by which the officials are required to deal specifically with the question of whether a complete specification describes substantially the invention set forth in the provisional specification. It is thought that, as this question is officially determined on acceptance, the patent when granted ought not to be allowed to be attacked on that ground.
– I have given notice of a similar amendment in a later clause, but I think it would be better to make it in the clause now under discussion.
– If the Prime Minister offers no substantial abjection, I shall move the amendment which I have indicated. The patents agentswho have given this matter a great deal of attention, consider that it should be made.
– I shall not object to the amendment.
Amendment (by Mr. Knox) agreed to -
That the following words be added, “ or that the complete specification is not in conformity with the provisional.”
– Would the Prime Minister agree to add the words “ any amendment allowed by the Commissioner.”
– Are they necessary ?
– I am not quite sure that they are.
– I do not know how far they would take us.
– Probably an amendment allowed by the Commissioner would not be considered as vitiating it in any way. I shall not press my suggestion.
Clause, as amended, agreed to.
Clause 62 consequentially amended and agreed to.
Clause 63 -
A patent shall be sealed as soon as may be and not after the expiration of sixteen months from the date of application, except in the cases hereinafter mentioned, that is to say -
– I move-
That the words “ except in the cases hereinafter mentioned that is to say,” be omitted, with a view to insert in lieu thereof the words “ or such further time as is prescribed, or as the High Court or the Supreme Court allows.”
– That will allow the sealing to be done by the Commissioner?
– This is a question relating to the’ time of sealing. It has been pointed out that the term of sixteen months, although apparently universally agreed upon as fair, might in some very exceptional cases be insufficient. It is thought that the difficulty might be met by regulation, and that this brief and general manner of dealing with the matter will permit of greater elasticity in these exceptional circumstances.
Amendment agreed to.
Amendment (by Mr. Deakin) agreed to -
That paragraphs a and b be omitted.
Clause, as amended, agreed to.
Clause 64 agreed to.
Clause 65 (Date of patent).
– My attention has been drawn to this clause by representatives of the inventors, although I confess that I cannot see my way clear to move an amendment in the direction which they desire. They state that, occasionally, owing to opposition or other reasons, the sealing and issuing of a patent extends over a considerable period ; and that the grant itself dates back to the time of application, so that sometimes as much as a year in the duration of a patent, which may be for only seven years, is lost. I cannot say that it is altogether lost, because a man may use his provisional patent to some extent, although he is not fully protected by it. He has only a limited use of his patent, and cannot dispose of it. The inventors desire that the patent should date from the time of sealing and issuing. I know that objections can be urged against such an amendment, but the gentlemen to whom I have referred are very anxious that this proposal should be considered.
– Reference is made in the clause to the “ publication of the complete specification.” I should like to know where provision is made for that publication.
– In clause 46.
– Does that refer to the publication of the complete specification?
– Yes, the provisional specification is never thrown open for inspection. After the patent has been granted a complete specification is open for examination.
Clause agreed to.
Clauses 66 to 70 agreed to.
Clauses 71 to 73 consequentially amended and agreed to.
Clauses 74 to 76 agreed to.
Clause 77 (Power to disclaim during action).
Mr. L. E. GROOM (Darling Downs).The clause provides that in an action for infringement or in a proceeding for revocation the “ Court or a Judge “ may make certain orders. In other legislation, however, we have restricted the meaning of the word “ Judge “ to a Judge of a Supreme Court, and have used the word “ Justice “ when referring to Judges of the High Court. I think that the word “ Justice “ should be inserted after the word “ Court.”
– I think the amendment should be made.
Clause amended accordingly, and agreed to.
Clause 78 (Restriction on recovery of damages).
– Is there in the Bill any definite grant to the holder of a provisional specification of- the right to use it as a patent; that is to prevent others from using his invention 1 Clause 49 provides that after an application has been been lodged, the invention may be used and published without prejudice to the validity of the patent.
– The provisional specification is not published, but if an applicant chooses to use it, he is protected from the time that he gets his patent.
– Is he protected from the date of the provisional specification ?
– The patent may be, and usually is, dated back.
Mr. HIGGINS (Northern Melbourne).It would be a great convenience to practitioners, and to the public, if a uniform system of reference to other Acts were used in the marginal notes. In Victorian Acts references are given to the exact year of the British Acts cited, so that we know exactly where to look for the original legislation. I suggest that the word “ British “ should be used in the marginal notes where the reference is to a British Act, just as the word “ Canada “ is used before the word “ Act “ in the reference in the marginal note to clause 15.
Clause agreed to.
Clause 79 agreed to.
Clause 80 consequentially amended and agreed to. > Clause 81 (Additional patent).
Mr. HIGGINS (Northern Melbourne).Under this clause a patentee may obtain ‘an additional patent for the unexpired term of the original patent.
– Yes, for half the fee.
– The Commonwealth cannot expect to derive a large revenue from patentees, and while I am glad that we have hitherto treated would-be patentees so liberally, it must be remembered that the officers of the Department will be put to as much trouble in dealing with an application for an additional patent in respect of an improvement as they were put to in dealing with the original patent, and therefore there seems to be no sufficient reason for charging a lower fee. If the same fee were charged, it might be an inducement to inventors to complete their inventions before applying for patents.
– I had some doubt, in looking over this draft, about the advisability of retaining the clause, but as it has been accepted by the Senate I shall not ask honorable members to negative it.
– I know that many inventors do not divulge the real secret of their inventions. They make public certain parts of the machinery, but omit what is really vital. That is frequently done by first-class inventors. In one case of which I became aware, a great deal of money was thrown away in Melbourne and in London upon a pirated invention, owing to the fact that the inventor had not disclosed the actual secret of his invention. I think, however, that we should encourage inventors to disclose as much as possible of their inventions, and therefore I approve of the proposal to charge only half-fees for additional patents in respect to improvements.
Clause agreed to.
Clause consequentially amended.
Mr. L. E. GROOM (Darling Downs).Subclause 10 provides that an appeal shall lie from the decision of the Supreme Court to the High Court. If a party aggrieved by the decision by the Commissioner appeals to the Supreme Court under clause 54, will the decision of that Court be final %
– I ask the question because it might be argued that the omission from clause 54 of the statement that an appeal would lie from the decision of the Supreme Court to the High Court,, and the insertion of that statement in the clause now under discussion, shows that it is not intended that there shall be an appeal from a decision of the Supreme Court under
– Subclause 9 provides that where a patent is revoked on the ground of fraud, the Commissioner may grant a patent to the actual inventor on an application made “ in accordance with the provisions of this Act.” Strictly speaking, however, no such application could be made, because in such a case the inventor could not truthfully declare that the invention had not been previously used. I, therefore, move -
That after the word “Act,” line 4, the words “ with such modifications as may be prescribed “ be inserted.
Amendment agreed to.
Mr. GLYNN (South Australia).- There is a provision in sub-clause 9 to the effect that where a patent has been- revoked on the ground of fraud, the Commissioner may grant the actual inventor a patent bearing the same date as the date of revocation of the patent revoked. It has been represented to me that some other date should be provided for. I have seen a statement of the President of the Chartered Institute of Patent Agents in Great Britain, who characterizes this clause, which is copied from the British Act, as the most absurd of enactments. Personally, I am not inclined to attach very much importarice to the point, because I assume that it is covered by a later provision, but I was asked to direct attention to the matter.
– I think that the suggestion is good. I do not see why we should endeavour to fix upon the Court the necessity of attaching to the patent the date of the revoked patent obtained by fraud. I therefore move -
That the words, “ the same date as,” line 6, be omitted.
Amendment agreed to.
– Sub- clause 10 provides that an appeal shall lie from the decision of the Supreme Court to the High Court. “For my part, I should much prefer to see the power to revoke a patent given to the Commissioner. He grants the patents, and why should he not have the power to revoke them? Of course, it might suit the lawyers to have as many applications as possible made to the Court, but I think that applications for revocations could be effectively dealt with by the Commissioner at far less expense than by the Courts.
– It is a very serious matter to revoke a patent.
– I do not know that it is any more serious than the granting of a patent.
– Would not the honorable and learned member give the power of appeal from the Commissioner in every case?
– Not always; because in some cases it is obvious that the patent should be revoked, and that no one could with any advantage proceed any further. I think it would be advisable to strike out paragraph 10, as it throws a doubt upon the question of the appeal to the High Court. We have already provided in the Judiciary Act for appeals in all such cases, and that should be sufficient.
– I have no objection to adopting the suggestion of the honorable and learned member.
Amendment (by Mr. Higgins) agreed to-
That the words “(10) An appeal shall lie from the decision of the Supreme Court to the High Court within the time and in manner prescribed be omitted.
Clause, as amended, agreed to.
For the purposes of this section the reasonable requirements of the public shall not be deemed to have been satisfied if, by reason of the default of the patentee to work his patent or to manufacture the patented article in the Commonwealth to an adequate extent, or to grant licences on reasonable terms-
– This clause is copied from the provision in the English Act of 1902 with regard- to the issue of compulsory licences. There are, however, some omissions which the Prime Minister might explain. The words of subclause 1 are taken from the English section, which contains these words in addition “ or in the alternative for the revocation of the patent.” I do not know why these words should have been struck out. Some of the patent agents think that they should be restored.
– I did not modify the wording of the clause. The words quoted by the honorable and learned member were struck put in another place.
Mr. GLYNN (South Australia).- There must have been some mistake. I therefore move -
That the following words be added to sub-clause 1 : - “or in the alternative for the revocation of the patent.”
Amendment agreed to.
Amendments (by Mr. Deakin) agreed to-
That before the word “ Supreme,” lines 12 and 16, the words “High Court or the” be inserted.
Mr. GLYNN (South Australia).- Following up the amendment made in sub-clause 1, I now propose to add to sub-clause 3 the words contained in the similar sub-section of the English Act. I move -
That the following words be added to sub-clause : - “or if the Court is of opinion that the reasonable requirements of the public will not be satisfied by the grant of licences the Court may order the revocation of the patent. Provided that no order for revocation shall be made before the expiration of two years from the date of the patent, or if the patentee gives satisfactory reasons for his default.
Amendment agreed to.
Amendment (by Mr. Glynn) agreed to -
That the following words be added to subclause 5 : - “or subject to the above proviso to the revocation of the patent.”
– I desire to specially direct the attention of honorable members to the provision contained in sub-clause 6. The powers given in the English Act, from which this clause is copied, are very extensive, and should prove very valuable. In the war upon which those great industrial corporations called trusts are at present entering against the unorganized industries of different peoples, this particular clause is likely to be of extreme service. In fact, apart from this claude, I do not know -what protection could be offered against such corporations as those which have bought up all the inventions connected with machinery used in some of the great manufacturing industries. These trusts will not sell the machines which have become essential to such industries, but only rent them at rates which practically pay for the cost of the machines. They levy further charges for their use, at the same time making it a condition that all other machinery of a similar class shall be purchased from them. As a result of this, manufacturers in other States are likely to be reduced to the position of hirers of the machines which have become essential to them. These operations have been very much commented upon in’ Great Britain, and it vas partly owing to the representations made regarding this development that the provision was introduced into the English law. I propose to amend the sub-clause so that it will read as follows : -
For the purposes of this section the reasonable requirements of the public shall not be deemed to have been satisfied if by reason of the default of the patentee to work his patent, or to manufacture the patented article in the Commonwealth to an adequate extent, or to sell the patented article at a reasonable price, or to grant licences on reasonable terms, or to sell the patented article at a reasonable price.
An Honorable Member. - The Minister is opening a very large field.
– Yes. But I am prepared to meet that objection by pointing out that the word “ reasonable “ allows such a large amouni; of latitude that no Court would press unduly upon the proprietors of a machine. , In construing a point of this kind, the Courts would lean in every way towards protecting the interests of the seller, and they would only take action against him in the event of some abuse of his proprietorship. It might, perhaps, be objected that the phrase is not so strong as it ought to be. At all events it appears to me to take a step in a direction to which my attention has been pointedly called by the Melbourne Chamber of Manufactures. I have been shown conditions in leases to which manufacturers in this State are now obliged to conform which absolutely restrict their freedom of operations. This proposal inflicts no hardship upon the patentee. He is granted a monopoly, and so long as he either hires or sells at what the Court does not consider to be unreasonable prices no one can interfere with him. It is only when he seeks to obtain a trade monopoly that any Court would dream of interposing. In view of the gravity of the situation which is being created here, as well as in the’ mother country, I move -
That the words “ or to sell the patented article at a reasonable price,” be inserted after the word “ terms,” sub-clause 6.
Mr. HIGGINS (Northern Melbourne).I think that it is absolutely absurd to give any man a monopoly which not only enables him to make a considerable profit out of his invention, but prevents others from making use of it upon reasonable terms. Whilst we ought to offer every legitimate encouragement to inventors, some limit must be imposed. If this proposal be carried, is it the intention of the Prime Minister to propose that all inventions shall be worked within the Commonwealth 1
– Yes ; I intend to move that in a new clause.
Mr. GLYNN (South Australia).- This amendment seems to involve a much bigger issue than honorable members would imagine from the gentle manner in which the Prime Minister has moved it. The object of patenting an invention is to allow its author to obtain a special price for his article - a price which he otherwise could not secure. Surely then, it is the height of inconsistency to subsequently ask the Court to fix the price of it. We propose to extend to an inventor protection for fourteen years, and afterwards to allow the Court to cut down the price of his invention to what it regards as a reasonable sum. Probably that price will approximate to what competitors in other lines of business think it is worth.
– The whole object of patent laws is to encourage the use of the best appliances.
– And to stimulate inventive genius by affording inventors protection for a prolonged term. Under this proposal, an inventor may be harassed by a series of actions during the whole of that period. Applications may be made to the Court to vary the price of his patent from year to year. Thus, by the time his patent rights have expired, he may have lost the greater part of the benefit which he had anticipated receiving. Certainly, if he has to defend five or six actions in the Supreme Court during the fourteen years’ currency of his patent, he will be involved in considerable expense. I trust that the Prime Minister will reconsider this matter. If we establish this precedent, it will develop in the same way that legislation has developed in New Zealand under Mr. Seddon’s rule. Only a fortnight ago I saw by the newspapers that he proposes to cure the effects of his protective Tariff by establishing a board to fix the price of articles the sale of which has become a, monopoly
– I thoroughly agree with the honorable and learned member for South Australia in regard to this proposal. I am anxious that the formation of trusts shall be prevented, but I think that honorable members should be allowed more than five or six minutes in which to> to consider a matter of such grave importance. To my mind, the words in sub-clause 6, “ to manufacture the patented article in the Commonwealth to an adequate extent,” fully meet the position. Let me point to the inventor of the linotype as an example. I believe that the actual material and workmanship in that machine costs less than £200, although the machine itself cannot be purchased under £1,200. At the same time I am very doubtful whether any court would decide that 500 per cent, was a. proper profit for its inventor to make. If we start to consider such matters, we shall only get ourselves into the most awkward of dilemmas. If an inventor is not to enjoy the right to use his patent as he chooses for fourteen years, what is the use of ingenuity and ability? Moreover, under this proposal, an opportunity will be afforded to drag every patentee before the Court, and, as a result, endless litigation will arise. ‘Every man who imagines that the price of a patented article is in excess of what it should be, will invoke the aid of the Court. I need scarcely remind honorable members that in the early days of his career, Mr. Edison himself was greatly harassed by rivals, who involved him in litigation. I support the position taken up by the honorable and learned member for South Australia, Mr. Glynn.
– It seems to me that the objection which has been ‘ taken to this clause deserves careful consideration at the hands of the Prime Minister. If we deprive inventors of their right to make all that they possibly can out of their inventions we shall rob them of their greatest incentive. I hold that the public are amply protected against an unreasonable charge being made for any patented article, by reason of the fact that an excessive price would result in its disuse. The proposal of the Prime Minister involves a very vital departure, and one which follows upon the lines of that policy which seeks to regulate the value of a man’s work, his inventive genius, and his capacity by Act of Parliament.
– Although the proposal of the Prime Minister sounded very plausible, when closely examined it amounts to this : We are framing at considerable trouble a patent system to encourage invention, whilst under this proposal we shall strike a death-blow at invention. The value of any invention must be determined by a comparison between what the user was paying for his appliances prior to the invention being placed upon the market, and what he pays for the invention itself. If the appliances which he was previously using were superior, there will be no demand for the invention. If, on the other hand, the invention is superior, there will be a demand for it, and the price paid for it will be in proportion to its superiority. This is a limitation on the patentee.
– An unrestricted right does not invariably work to the advantage of the consumer.
– It does to this extent: that if the invention had not been discovered the consumer or user of it would probably have had to incur greater cost.
– The consumer would not obtain the full advantage of it.
– Not at first; but he would do so after the expiration of fourteen years. The principle of a patent law is that the chief advantage derivable from a patent should for a limited time go to the inventor.
– What about the incandescent gas light ? In Sydney, a few years ago, one had to pay 15s. for a complete burner which, although the patent has not run out, can now be obtained for 3s. It is the same invention.
– I am not sure, but I think that in that case the reduced price is due somewhat to the reduced cost of the production of the article. We have to recognise that if a man was prepared a few years ago to pay 15s. for the burner in question, it was because he obtained some advantage from its use. If, by its use, he could reduce the quantity of gas consumed on his premises, it was to his advantage to purchase the burner, and to allow the inventor the advantage of his patent rights for fourteen years, knowing that ‘at the expiration of that period he would effect a still greater saving. Thus the public have been advantaged by that patent, although the patentee, in the first instance, may have received a very high price for his invention. It is very difficult to determine what is a fair price to allow for a patented article. We know that in many cases inventors have devoted the best part of their lives to the work of perfecting some improvement in a process or article of manufacture; and that in some cases they have lost thousands of pounds belonging to themselves or to other people in making that effort. When, after such an experience, an inventor at last achieves success, it is very difficult to say what he should receive in respect of his patent during the fourteen years over which it extends. The only true guide to the proper price to be fixed is the consideration of the question whether the public gains an advantage by purchasing the invention at the price demanded by the patentee. It would not suit a patentee to demand a price for his invention that would discourage its use.
– It often suits their book to do so.
– It cannot do so, just as it can scarcely suit a barrister - and this is not a personal reference - to demand too high a fee for his services, and consequently reduce his income.
– There are cases in which a barrister charges too high a fee in order to avoid being retained.
– But if he desires to be employed his income must suffer if he demands too high a fee for his services.
– Some corporations do not sell articles patented by them, because they desire that some other article shall be used.
– I cannot conceive such a case.
– It has been done.
– We should not leave it open to a patentee to be harassed merely because of some extraordinary circumstance which may have occurred in relation to a particular patent. Under this proposal a patent granted to a poor man will be practically worthless to him. He will be constantly harassed by men who desire to obtain possession of his patent, and who are better able to bear the cost of proceedings at law. A patent will be worth nothing to a man who has no means to defend actions brought against him under this provision. Will a rich monopoly suffer under it ? No. The man who will suffer will be the individual who cannot afford to go into court and contest the points of law which a provision such as this will enable people who want to secure his patent to raise. In these respects this is a very dangerous provision. I admit that in a few cases it may confer some advantage on the public, but it will be a serious danger to patentees, and more especially to patentees in poor circumsances. Ample provision is made for the Court to deal -with the difficulties which have been suggested. If in a case such as that to which the PrimeMinister has referred, powerful foreign monopolists desired to retain the advantages of their invention for their own country they would probably secure patent rights for it abroad - in Australia, for example - and might charge a price for the article which would exclude its use or consumption here. But we have here a provision enabling the Court to grant a compulsory licence to others if it is shown that any existing industry, or the establishment of any new industry, is unfairly prejudiced by the action of the patentee. That is a fairly strong provision, and constitutes a great source of protection to the public. The Court . has also power to determine what shall be done if the demand for a patented article is not reasonably met. That touches the question of cost to which the honorable and learned member for Northern Melbourne has referred. When the sale of a patented article is absolutely restricted, and people are unable to obtain possession of it because of the high price demanded by the patentee, the Court may be called upon to determine what shall be done in order to ‘remedy that difficulty. But to say that in every case brought before it the Court shall decide what is a fair price to be charged for a patented article is a very serious matter. An invention may be hit upon by chance, while on the other hand, another patentee may have devoted many years of his life to the work of improving and perfecting an invention useful for the same purpose. In such a case the Court would have to say, “ These patents, although distinct, are useful for the same purpose, and the public must take their choice. The price of this patent accidentally hit upon by this inventor, shall be so and so ; but as the other invention was devised after years had been spent in conducting experiments, and as the result of a considerable outlay the proper price to fix for it should be higher.” Is that a fair way to make a comparison1? If these articles were designed for the same purpose and were practically equal, would they not be of equal value to the public ? This proposal will reduce the value of patents. It will operate to the disadvantage of the poor patentee, and will not accomplish more than would be accomplished by the other provisions designed to protect the public interest.
– We have already determined that the Court shall decide whether an article is adequately manufactured, and why should we not leave it to the Court to say whether a patented article is adequately sold ?
– Because the two questions are wholly different. If the honorable and learned member were a judge, how would he deal with the case which I have just mentioned? Surely he would have a right to take into consideration the plea made by an inventor that he had spent twenty or thirty years of his life in perfecting his invention, and to allow him to charge what he considered to be a fair price for it ? If another man came before him and produced an equally useful patent which he had perfected without the expenditure of much time or money upon it, what would he do ? Would he say - “ These two articles, designed for the same purpose, although different in construction, should be sold at different prices,” and thus practically deprive the man who had spent much time and money in perfecting his invention of a market for his patent ? The only way in which to decide these questions is by having regard to the principle which is really at the root of all patent laws. Let us assume, for example, that there is a certain process or article in use by the public, and that some one effects what he believes to be an improvement upon it. The public test it, and, finding that it is an improvement, they are willing to pay a certain price for it.
– If there is a person ready to sell it to them
– Does not the honorable and learned member see that the clause already provides for the case of a man who declines to sell a patented article 1 The public will only buy a patented article at a price which will enable them to obtain better results by using it than they could get by doing without it. I think that the Bill itself provides for cases in which the patentees will not sell. We are departing from the principles of patent law. Those principles are, first, that in order to encourage invention patentees should be given a monopoly for a certain period of the right to sell their inventions. But unless an invention is sold to the public at a price at which they can gain an advantage by using it, they will not buy it.
– Is the honorable member in favour of allowing the Crown to take over a patent upon paying compensation for it, as is provided in clause 88 ?
– I shall be prepared to answer the honorable and learned member when we come to clause 88.
– The principle is the same.
– The provisions of clause 88 have nothing to do with the question now under discussion. Although for a limited period patentees have a monopoly of the right to sell their inventions, at the end of that period the public have the full advantage of the inventions. There is no occasion for such an amendment as the Minister has moved, and I regard it as a dangerous one. It will be difficult to administer, and will play into the hands of those who wish to worry patentees, and especially poor patentees. Moreover, it will make patents of much less value than is the intention of most patent laws.
– If I, for one moment, believed that the amendment would have any of the effects to which the honorable member has referred, I should not have moved it. I do not support it on merely theoretical grounds. Some of the most substantial manufacturers in Melbourne have represented to me that they are already commencing ‘ to feel what men in similar businesses in England are suffering.
– They are the men who want their own goods to be protected.
– Yet they wish to rob others of the protection afforded by the patent law.
– I have before me the conditions of some of the leases upon which they are obliged to obtain machinery. It is patented machinery which they are bound to use, and it is the property of trusts who have a monopoly of its disposal.
– That is especially so in the boot business.
– The trust will not sell the machinery ; it leases it upon the condition that the manufacturers using it shall pay the price in instalments, and shall pay a rent according to the business done.
– The trust compels the bootmakers to use certain machines, while the bootmakers, by means of the Tariff, compel the public to buy and wear certain makes of boots.
– In the case of the machinery to which I am referring there is no competition, whereas in the case of the bootmakers there is great competition, and the public are free to choose for themselves what brands of boots they will wear. The trust to which I am referring commands millions of capital. It has bought all the machinery used in a certain manufacture, and other trusts are buying machinery to control other manufactures. This trust requires the manufacturers to procure all their machinery from it, and holds itself free to terminate its leases at any time.
– But it must pay the manufacturers to use the machinery.
– They mutt use it, because the trust has bought up the latest patents. Proceedings of this kind were incredible to me until I was given proof of them, because I did not believe that it was possible for such a condition of dependence in business to be created in Australia. I find, however, that some of our manufacturers are absolutely at the mercy of a foreign trust which holds them in the hollow of its hand. My amendment is designed to provide a means to put an end ‘to such a state of things.
– The amendment goes much beyond that, and deals with every patent.
– It deals with every patent in regard _ to which certain conditions are not fulfilled. I am open to consider suggestions for the improvement of the phraseology which I have used.
– The amendment would allow any patentee to be worried and harassed.
– Then the English Act of last year allows patentees to be worried and harassed, if it is believed that they are using their patents to plunder the public.
– What is the wording of the English Act ?
– Sub-clause 6 has been borrowed from the English Act. What I aim at is the utter misuse of the monopoly created by patents. The profits of patents ought to be large, because it is necessary to offer great prizes in order to encourage inventors. But we should prevent wealthy combinations from obtaining control of whole trades by getting into their possession all the machinery which is necessary for carrying on those trades. Perhaps it would be better if I substituted for the amendment which I have already moved the words -
Or his refusal to sell the patented article absolutely or except at oppressive and unreasonable prices.
Amendment amended accordingly.
Mr. THOMSON (North Sydney).- Although the honorable member’s alteration is an improvement upon his original amendment, I would point out that the words do not meet the case to which he referred, because the machinery of which he spoke is, he says, leased and not sold to the manufacturers. I think it would be better to say “ or to provide or sell the patented article except upon unreasonable terms.”
– The amendment, although a very important one, has been moved at a late hour, and all the evidence that has been adduced in support of it is the ex parte statements of certain Melbourne manufacturers.
– There are the statements contained in a book which had a large circulation a few years ago, The American
– Then why did not the Prime Minister insert these words in the clause in the first place t
– I sent down the facts, so that a provision might be inserted. The drafting was nob in my hands. If it had been, some provision of the kind would have been framed.
– This is the first time that the question has been put before honorable members, but surely we ought also to hear a statement of the case of patentees and patent agents. The honorable member for North Sydney has pointed OUt that inventors have often spent years in bringing bo fruition something upon which their brains have been working. For instance, the inventor of the Wolseley shearing machine worked at it for, I am afraid bo say, how many years.
– The original inventors are generally very anxious to sell.
– Surely when an inventor has perfected his invention and obtained a patent for it, he should be able to obtain a large reward. Some inventors are lucky, and are able to perfect their ideas in a few hours or days, but very often an inventor has spent years in perfecting his invention. It is proposed to leave in the hands of the Government the decision as to the reward which shall be given bo a man for many years of labour. Ib would be just as fair to cut down the fees of a barrister after he had proved himself especially competent and skilful. I know that there is such a thing as a taxing master attached bo the Courts bub some barristers are allowed much higher fees than are others. We might by imposing a condition of the kind now proposed, prevent some big combination from doing harm, bub ab the same time we should work infinite mischief bo a large number of poor inventors
– I have known great industries in America to be absolutely ruined by the patentees of certain machinery refusing bo rent their machines bo the manufacturers. For instance large boob factories in some parts of the United State have been absolutely closed and thousands of employes have been turned out with their swags on their backs to tramp towards the setting sun.
– We have provided against all that.
– My object is to show honorable members that great danger is to be apprehended if we allow a few monopolists to purchase a patent and then refuse to allow others to share in its benefits, except by paying prohibitive rates. The manufacturers of the Wagner and the Mann railway cars were ruined by the Pullman Car Manufacturing Company, which captured every important invention used in carbuilding. The other works were crushed out, and a gigantic monopoly was reared upon their crumbling remains. Then, again, the whole world is to-day paying tribute to one man in Pennsylvania for the use of the Westinghouse brake.
– That brake has proved of the greatest advantage to the world.
– No doubt. But since it was invented many others which were equally as good have been designed, but have been crushed out by the power of the monopolists.
– The proposal in the Bill will help to crush out all new patents.
– On the contrary it will enable every man to place his invention upon the market. It is only fair that the Courts should decide what is reasonable or unreasonable. It has been pointed out that one man may work for thirty years upon an invention, whilst another may hit upon an important discovery by a flash of thought, as did Holliday of San Francisco, the inventor of the cable tramway system. All these diverging circumstances in connexion with inventions cannot, however, be sufficiently provided for. We must recognise the doctrine of the survival of the fittest. I am glad that the Prime Minister has endeavoured to embody in this Bill the principle that the people shall rule. If a man does not wish to sell his patent we should compel him to make it available to the public at a reasonable price. We know that inventors require the fullest encouragement : but, at the same time, we should protect the public against monopolies. Inventions of the utmost value and importance in mining operations have been purchased by two or three big monopolists, who have crushed out all smaller competitors. We must look after the “ little fellows,” because the time has come when no individuals in the community should be allowed to profit by the misfortunes or follies of their fellows.
– I think we may regard this proposal as a crowning’ piece of cheek on the part of protectionists. It is characteristic of the whole movement. First of all the boot manufacturers aimed at securing a monopoly of the trade in the Commonwealth by means of the high protective duties imposed by the Tariff. Then they claimed that all their machinery and tools of trade should be admitted free of duty, and now, forsooth, they ask that they should be granted the benefit of other men’s brains. They want to compel inventors to sell the product of their brain work for years at any price that may be fixed upon by those who require to use the inventions. This Bill will prove to be so much waste paper if this provision is retained in it, and I shall fight it by every means in my power.
– I thought that the advantage of introducing such a provision as that now under discussion would be so obvious that no objection would be raised. I do not think any question of protection is involved. The conditions of the boot trade were mentioned only by way of illustration, and boot manufacturers are not more interested in this matter than are others. In these matters we must go back to first principles. Patents are monopolies, and some people think that no patents should be granted. The State having adopted the view that inventors must be encouraged to a limited extent, we must not allow patents to be so used as to prevent inventions from being employed to proper advantage. In some cases, manufacturers who have large plants purchase the patent rights of new inventions which would have the effect of displacing their antiquated appliances, with the object of preventing the new machines from being adopted.
– Does the honorable member know of any such instance 1
– I have heard of several cases of the kind, and I can fully understand that it might be good business to keep a new invention in the background, at least for a time.
– It would be bad business.
– This provision is intended to improve the position of the poor inventor, who is only too glad to sell his invention if he can obtain a reasonable price. Under the British law the Crown can compel a patentee to make his invention available to them for nothing. If the Crown is to be allowed to use inventions without compensation, and we are to give to the patentees advantages which are not conferred upon them by the existing law, surely we are entitled to compel patentees to give to the public the benefit of their inventions at a reasonable price 1 May I also point out that we are really haggling over a matter which the clause already concedes in other directions. It provides that, in case of default on the part of the patentee to work his patent or to manufacture it within the Commonwealth to an adequate extent, or to grant licences upon reasonable terms, the Commissioner shall have power to grant a compulsory licence or to revoke the patent. Surely we ought to be as hard upon the vendor of patented articles as we are upon their inventors. A great deal has been said in reference to the liability of the poor patentee to be attacked upon all sides. But I would point out that he cannot be attacked unless with the consent of the Commissioner. Under sub-clause 2, no person can attack a patentee for not fulfilling the reasonable requirements of the public, unless he first obtains the leave of the Commissioner.
– There is an appeal against the Commissioner’s decision.
– No. The applicantmust satisfy the Commissioner in the first instance, and if he cannot do so that officer will dismiss the application. There is no power of appeal from the Commissioner’s discretion. That fact alone affords adequate protection to the patentee. I feel that honorable members who have opposed this proposal have done so chiefly because it constitutes a new departure. But, after all, it will inflict no hardship upon the patentee, and, therefore, I sincerely hope that honorable members may see their way to allow the clause, in its modified form, to be carried.
Mr. CROUCH (Corio).- I have been very much impressed by the arguments which have been used by the honorable and learned member for Northern Melbourne, and particularly by the amendment of the amendment but, at the same time, I do not like the word “default.” It seems to me that mere neglect on the part of the patentee to work his patent should not subject him to any oppressive treatment. In its modified form, however, the clause is not open to the same objection which I previously urged against it.
Mr. THOMSON (North Sydney).- The Prime Minister has been able to give only one illustration of the necessity for such a provision as he proposes. The case which he cited had reference to certain machines, which are used in an industry to which consideration has been given by the State, in order that a demand may be created for the article which they produce. But I would point out to him that that case is already met by sub-clause 6, which declares -
For the purposes of this section, the reasonable requirements of the public shall not be deemed to have been satisfied, if by reason of the default of the patentee to work his patent, or to manufacture the patented article in the Commonwealth to an adequate extent, or to-grant licences on reasonable terms -
Any existing industry or the establishment of any new industry is unfairly prejudiced.
The one claim which could be urged in the case instanced by the Prime Minister was that the industry employing these machines was unfairly prejudiced. That case, therefore, is fully provided for by the provision in question. The only instance which was mentioned by the honorable and learned member for Northern Melbourne was one in which the patentee or his assignee refused to sell a patented article. Such a case, I contend, is fully met by paragraph b of the same sub-clause. But the Prime Minister desires to go further arid to introduce the question of price. Such a proposal must tend to the injury of the poorer inventor. The honorable and learned member for Northern Melbourne declares that the Commissioner must first decide that a prima facie case has been established. That is just one of the means which will be adopted for harassing the poor patentee. A complaint can be made to the Commissioner that the price demanded for any article is , excessive. If the patentee is possessed of means, of course he will fight the matter, but the poor patentee will be compelled to prove to the Commissioner that the price demanded by him is not excessive. If persons wish to reduce the value of his patent, they will merely require to appeal to the Commissioner. If they make certain statements in order to support their complaint that the price charged for any article is unduly high, he will be compelled to bring rebutting evidence. This may involve him in a considerable outlay. The Prime Minister has expressed his admiration for the English Act. . Then why does he not follow the language which is employed in it? I find, from the twentieth report of the ComptrollerGeneral of Patents in Great Britain, that -
Before the second reading of the Bill, strong representations were made to the Board of Trade by the Chambers of Commerce and others, that the clause as thus drawn was open to objection, and that unless amended it would fail to afford an effective remedy for the evils which it was designed to meet. It was therefore very carefully reconsidered with a view of seeing whether such of the objections raised to it as appeared to be well founded could be met without departing unnecessarily from the recommendations of the Departmental Committee ; and in the result amendments were made in the clause, which were generally accepted as satisfactory.
There they have arrived at what is generally considered a satisfactory solution of the difficulty. If the Prime Minister has a preference for the English Act, why does he not follow it in its entirety ?
– I am doing so.
– In a matter of this sort, Great Britain has more to lose than has any other country in the world. I have shown that the Bill provides for the cases mentioned by the Prime Minister and by the honorable and learned member for Northern Melbourne. We shall incur great risks, and we do not know where the consequences may end. We shall also place the poor inventor at a greater disadvantage than before. Questions affecting his patent will be constantly raised under this provision by those who wish to depreciate his invention, in order to obtain possession of it at a lower price than he is entitled to receive. The Prime Minister admits that the gain will be slight. I do not think that any advantage will be derived from this proposal, and I contend that we should not incur these additional risks. We should accept the provision as it stands, for the best guide to the price of an article is its value to the public.
Question - That the words proposed to be inserted be so inserted - put. The Committee divided.
Majority … …8
Question so resolved in the affirmative.
Amendment agreed to.
Clause, as amended, agreed to.
Clause84 agreed to.
Clause 85 (Old inventions not in use).
Mr. THOMSON (North Sydney). - I intended to move the addition of the following words at the end of the clause “ or has been described in a work accessible to the public during that time,” but if the Prime Minister objects to such an amendment I shall not press it.
Clause agreed to.
Clause 86 -
In any action for infringement the Court may, if it is of opinion that any claim in the complete specification is invalid, order the plaintiff to pay to the defendant the whole or such part of the cost of the action as it thinks just, notwithstanding that the patent is held to be valid so far as it relates to any other claim.
Amendment (by Mr. Glynn) agreed to -
That the following words be added - “and order the patentee to file a disclaimer at the (latent office of the invalid claim. “
Clause, as amended, agreed to.
Clause 87 agreed to.
Clause88 (Patent to have effect against Crown).
– I would suggest that this is the clause in which the Government should take power to purchase any patent.
– That is provided for in sub-clause 2. We can purchase on such terms as are agreed upon, or, in default of agreement, on such terms as are settled by arbitration.
– I do not think the clause covers the whole ground. The Government should have clearly-defined powers to purchase any patent.
– We can do that without any Act.
– If the Prime Minister is satisfied that the Government have power to purchase any patent that would be beneficial for the whole Commonwealth, or for a State, it covers the whole difficulty we have been arguing lately.
– We have an inherent power to buy anything Parliament authorizes us to buy.
– Take, for instance, the cyanide patent. Some similar invention may take place, the purchase of which will prove beneficial to the Commonwealth, and the Government might obtain the monopoly of it by paying a substantial sum.
– There is no question about our right.
– I should like to raise another point, which I can best do by giving a concrete case. I have in my mind the case of the Sydney telephone switchboard. At the time we purchased that board, the Western Electric Company had patent rights for New South Wales. A switchboard sold by the Ericson Company was regarded by our experts as much superior, and the price of it was about £4,000 less than was asked for the board we purchased.
– The Government could have taken the superior board.
– To do so would have been .to outrage the spirit of the law, although we might, perhaps, have conformed to its letter. As a matter of fact, we did purchase some jacks, which were considered to be of a much superior character, from an agent in Victoria, but the agent for the Western Electric Company in New South Wales took the company from whom we purchased them to Court, and the Equity Judge gave us a good drubbing - rightly so, I believe. I did not think we had any right to do as we did, and I was not aware of it until it was done. Ought there not to be some provision by which the Government can make arrangements to take an improvement upon terms which would be financially fair to existing patentees 1
– I think we can do that under sub-clause 2. 11 i 2
– What is the objection to putting in the word “ purchase” ?
– Only that it is unnecessary.
– The question is, should the Government be content to take an article for which patent rights exist when a very much superior one is offered 1 It is a question how far the Government ought to tie themselves up in such a way as to prevent themselves from taking advantage of the scientific inventions which are falling in upon us every day. In Sydney we are using inferior appliances in the Telephone Department because of the existence of the patent rights to which I have referred. In a matter of this kind it is only a question of payment between the Government and the patentee. If a Government took care that a patentee lost nothing, it should be at liberty to use any other invention.
Mr. L. E. GROOM (Darling Downs).There is one aspect of the question raised by the honorable member for Wide Bay to which I would direct the attention of the Prime Minister. It might happen that in one of the States a patented process for some mining operation was being sold at an extortionate price, and the Parliament of that State might desire to acquire the patent rights in order to enable the public to make use of the invention more cheaply. Under the Bill as it stands, however, the patentee could not be compelled to sell his patent to a State. A State could not compel him to sell what he has acquired under a Jaw of the Commonwealth. I understand that the honorable member desires that power shall be given to the Governments of the States to acquire patent rights for use by the public on the same terms as those upon which they can be acquired for use in the Public Service.
– I will consider the matter.
Mr. FISHER (Wide Bay). - I am glad that the honorable and learned member for Darling Downs has thrown more light upon my suggestion. Those who have any knowledge of Australia must know that there are in existence patents which it would-be advisable for either a State or the Commonwealth to purchase right out for the benefit of the public. Such a step would also be beneficial to the patentees, because they would at once receive the profit of their inventions. I should like to see it specifically provided in the Bill that a patentee may go to a State Government and say, “ I am willing to accept a certain sum for the patent rights I hold within this State.”
– There is nothing to prevent a patentee from doing that, but it will be necessary to insert a special provision in order to enable the Government of a State to say to a patentee - “ You must sell to usyour patent rights.”
– Yes. I contend that such a provision is necessary to the public welfare.
Clause agreed to.
The inventor of any improvement in instruments or munitions of war may assign the invention and the patent….. to the Commonwealth…..
Amendment (by Mr. Crouch) agreed to-
That the words “ improvement in instruments or munitions of war” be omitted with a view to insert in lieu thereof the word “ invention.”
Clause, as amended, agreed to.
Clauses 90 to 92 agreed to.
Clause 93 consequentially amended and agreed to.
Clause 94 agreed to.
Clause 95 -
Any person on passing the prescribed examination and on paying to the Commissioner a fee of £5, may be registered by the Commissioner as a patent attorne)’.
– I move-
That the word “attorney” be omitted with the view to insert in lieu thereof the word “ agent.”
The word “ attorney “ has a special meaning throughout Australia, and the use of the term “ patent attorney “ is likely to mislead the public in regard to the qualifications of those to whom the clause refers.
– We use the phrase, “agent or attorney,” in other parts of the Bill.
– Where it is so used, the ‘word “attorney” means an attorney under a power, and the person so acting would probably be a solicitor. Many patent agents at the present time have the title printed on their windows and upon their stationery, and the amendment would therefore be an advantage to them, while it would also meet the wishes of the members of the legal profession.
– The clauss provides that a laynian who passes a prescribed examination and pays a fee of £5 may be registered as a patent attorney, but, under a subsequent clause, any solicitor may practise as a patent attorney with’ out passing the prescribed examination or paying the fee.
– Because he has already passed a similar examination.
– And has paid a fee of £50 to become a solicitor.
– That fee is paid for something else.
– It includes the privilege to practise as a patent attorney.
– I think that the provision as to fees should be made uniform, and I shall propose an amendment at a later stage with that object in view.
– There are persons other than solicitors, or those who are at present practising as patent agents, who might be equally entitled to become registered as patent attorneys. For instance, when the Commonwealth Patent Office is brought into existence the whole of those officers now employed in the States offices may not be absorbed into the Commonwealth service. Some of these might be specially qualified to act as patent attorneys, and I do not see any reason why they should be required to pass an examination, and to pay a fee of £5 whilst others, perhaps less competent, are admitted without complying with any such conditions. I suggest that, in addition to those who pass the prescribed examination, the Commissioner should register any person who supplies proofs of competency in accordance with the regulations. Many persons now engaged in Patent Offices would be able to comply with all reasonable requirements without being subjected to an examination, and persons who have been engaged in the patents business in other parts of the world might also be able to give satisfactory evidence of their qualification for the position. I hope that the Minister will consider the matter.
– I thinkthat there is some reason in the suggestion of the honorable member, and perhaps his object might be met by inserting after the word “ examination “ the words “ or if they have been officers in a patent office and comply with the prescribed conditions.”
– My object is to relieve persons such as I have described from the necessity of paying the fee of £5, and perhaps it will be better to make an amendment in clause 100.
Clause agreed to.
Clauses 96 to 98 agreed to.
Any person who proves to the satisfaction of the Commissioner that he was at the commencement of this Act bonàfide practising as a patent agent in any part of the Commonwealth, and had been so practising for six months prior to such commencement may be registered as a patent attorney without passing the prescribed examination.
– I desire to ask the Prime Minister whether it is intended that patent attorneys shall pay any fees ?
– Yes. Of course those who are at present practising will not pay.
– Oh, yes.
– I do not see why patent agents who have been practising for six months prior to the commencement of this Act should be exempt from the payment of fees any more than those who enter the profession at a later period.
– They pay a fee upon entering the profession.
– It seems to me that the clause will have the effect of creating a legal monopoly. “With a view to testing the question, I move -
That the following proviso be added : - “ Provided they pay a fee of Five pounds.”
– I would point out that there are certain persons who have . practised professionally as patent agents. In the past, when dealing with professional men by legislation, we have endeavoured to preserve to them their existing status. The proposal of the honorable member for South Australia would impose a specific tax upon these individuals.
– Why should they not pay the fee as well as those who enter the profession at a later date?
– The clause simply declares that certain persons can enter the profession in the future under prescribed conditions. It is not fair to insist that the present patent agents, who have already paid their professional fees, shall be Subjected to additional charges.
– I do not think there is any doubt that patent attorneys will be required to pay fees under this clause. I would point out that clause 95 provides that -
Any person, on passing the prescribed examination, and on paying to the Commissioner a fee of Five pounds, may be registered by the Commissioner as a patent attorney.
This clause provides that any person who proves that at the commencement of the Act he has been practising as a patent agent in the Commonwealth for six months, may be registered as a patent attorney without passing the prescribed examination. The provision does not say that he may be so registered without paying the fee. Then, under clause 100, honorable members will notice that unless a man is a solicitor he must be registered, and to be registered he must pay a fee and, unless he has previously practised, pass an examination.
– I would ask the honorable member for South Australia, Mr. Poynton, to temporarily withdraw his amendment, with a view to enabling me to submit a prior one.
Amendment, by leave, withdrawn.
Amendment (by Mr. Deakin) agreed to-
That after the word “commencement,” line 6, the following words be inserted: - “and any person who has been an officer in a State patent office on complying with the prescribed conditions.”
Clause, as amended, agreed to.
Clause 100 agreed to.
No person shall describe himself as a patent attorney unless he is registered or entitled to practise as a patent attorney under, this Act. . .
– I move-
That; after the word “ shall” the words “ practise or act or “ be inserted.
If a person be prohibited from describing himself as a patent attorney, he ought to be prohibited from acting as such.
– It has been suggested to me that there ought to be a clause defining what is “acting” as a patent attorney. I have the terms of a clause suggested by the Patents Institute of England.
– I shall be glad to look at the suggested clause, and see whether it is necessary.
Amendment agreed, to.
Clause, as amended, agreed to.
Clauses 102 to 111 agreed to.
The Commissioner may refuse to grant a patent for an invention of which the use would, in his opinion, be contrary to law or morality.
– To what law does this clause refer? Is the clause confined to Commonwealth law, or does it apply to States laws, as I think it should?
– The clause means the principles of law - law in general.
Clause agreed to.
Clauses 113 and 114 agreed to.
Clause 115 (International arrangements for protection of inventions).
– This clause is not quite in accordance with the English Act, which contains an additional sub-section inserted, I believe, on the recommendation of the International Convention. The words in the English Act are those contained in a proposed new sub-clause, of which I have given notice. I move -
That the following new sub-clause be added : - “ (5) The application must be accompanied by a complete specification which, if it be not accepted within the period of twelve months, shall, with the drawings (if any), be open to public inspection at the expiration of that period.”
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 116 and 117 agreed to.
Clause 118 (Exhibit at exhibition).
Mr. GLYNN (South Australia). - I do not know whether the Prime Minister will accept the new clause which I propose shall be substituted for clause US. The proposed new sub- clause is taken from the South Australian Act, and is as follows : -
An application for a patent shall not be barred by the fact of an invention having been exhibited or tested either publicly or privately, and” shall not in itself be deemed any ground for refusal of a patent or justify any other person than the inventor in using such invention. Provided that such exhibition must have been within one year of the date of the inventor filing his application for a patent.
I have received a communication from some patent agents who are of opinion that the present clause in the Bill is cumbrous and would be of little use, besides failing in the main object, namely, that of preventing an inventor from having his invention unwittingly lost through exhibiting before he has filed his application for a patent. The patent agents suggest that the practice under the South Australian Act, the Victorian Act, the Canadian Act, and the United States revised rules of 1 899 and other patent laws, should be adopted.
– I have re-drafted the South Australian provision, and I move -
That all the words after the first woitl “ The “ be omitted, with a view to insert in lieu thereof the following words: - “fact that an invention has been exhibited or tested, either publicly orprivately, shall not in itself -be deemed a ground for refusing a patent. Provided that any public exhibition or testing must have been within one year of the date of the inventor lodging his application for a patent.”
Amendment agreed to.
Clause, as amended, agreed to.
– I do not think that thereis much value in the remaining clauses, which I shall ask the Committee to negative.
– Is not clause 121, relating to evidence, likely to be useful?
– No. We have another provision for that purpose.
Clauses 119 to 122 negatived.
– What does the PrimeMinister propose to do in the matter of permitting registration of patents between the passing of the Bill and its coming into operation ?
– I am drafting new clauses, for that purpose.
– I have to announce thereceipt of the following Message from the Senate : -
The Senate having considered Message Xo. 21 of the House of Representatives, requesting concurrence in certain resolutions transmitted therewith, in regard to the procedure for the selection of a Federal Capital Site, acquaints the Mouse of Representatives that the Senate does not concur in such resolutions.
Motion (by Mr. Deakin) proposed -
That the House do now adjourn.
– Sometime ago some members of the Bar in South Australia expressed a desire to be present at the opening of the High Court as an act of courtesy to the Judges ; but if its first sitting were held on a Monday, it would bevery difficult for them to come, as it would be necessary to start on the Friday. Perhaps the Attorney-General will take this ^matter into his consideration. The honorable member for Tasmania, Sir Edward Braddon, Ls anxious to know when the promised synopsis of the evidence taken by the Royal Commission on the Capital sites will be laid on the table.
– I should like to know whether the Prime Minister is in a position to say what he proposes to do -further respecting the important question of selecting a site for the Federal Capital - whether or not he proposes to ask the Parliament to arrive at a decision during the currency of this session.
– I desire to -ask the Prime Minister whether his attention has been drawn to a Brisbane telegram in to-day’s newspapers to the effect that the Queensland Government have been notified that the recruiting of Polynesians from the Solomon Islands <has been stopped, and that no further returns to the islands will be made. I wish to know whether the notification has emanated from the Commonwealth or some other authority - whether, in fact, the Prime Minister knows anything about the »matter.
– I was so closely engaged o-day - first with the Cabinet, and then with “the Patents Bill- that I have not had time to deal with the papers of my Department for the last two days. I take it that the intimation has arrived from Mr. Woodford, who is the British Resident in the Solomon Islands. If I find any information in the papers I shall inform the honorable member *for Wide Bay to-morrow. I shall ask the Attorney-General to convey to the Chief J Justice the intimation that inter-State members of the legal profession wish to do the Bench honour, and I have no doubt that an arrangement for the sitting of the Court will be made to meet their convenience, The presentation of the evidence taken on Capital sites was delayed by the discovery at the last moment that three sheets were missing. The missing sheets have been -obtained from Sydney, and I believe that the report will be circulated early tomorrow. When the House meets to-morrow I shall probably have a statement to make’, and perhaps a proposition to submit in (reference to the Federal Capital.
Question resolved in the affirmative.
House adjourned at 11.2 p.m.
Cite as: Australia, House of Representatives, Debates, 30 September 1903, viewed 22 October 2017, <http://historichansard.net/hofreps/1903/19030930_reps_1_17/>.